From the Official Journal to the Diário da República: the role of correlation tables and Lei 44/2023 in the transposition of EU Law into Portuguese Law

On April 4, 2024April 4, 2024 By officialblogunioIn News1 Comment

Pedro Petiz Viana (Master in Law and Informatics from UMinho / LL.M. in European Law from Leiden University / EU Affairs Advisor in the Portuguese Parliament)

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Under Articles 258 and 260(3) of the Treaty on the Functioning of the European Union (TFEU), and in accordance with the principle of sincere cooperation laid down in Article 4(3) of the Treaty on European Union (TEU), Member States have the obligation to notify the European Commission of the national measures transposing a Directive.

As affirmed by the Court of Justice of the European Union, this notification must “contain sufficiently clear and precise information on the substance of the national rules which transpose a Directive”,^[1] so that the Commission is in a position to ascertain whether the Member State has genuinely and completely implemented the Directive.^[2]

As stated by the Court in Commission v. Belgium, this notification may encompass a “correlation table”.^[3] The European Commission, in its “Better Regulation Guidelines” also affirmed that this obligation to communicate may include the so-called “correspondence tables”.[4] [5]

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The EU Directive on violence against women and domestic violence – fixing the loopholes in the Artificial Intelligence Act

On March 29, 2024 By officialblogunioIn Essays2 Comments

Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ | Member of the Jean Monnet Module team DigEUCit)

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March 2024: a significant month for both women and Artificial Intelligence

In March 2024 we celebrate women. But March was not only the month of women. It was also a historic month for AI regulation. And, as #TaylorSwiftAI has shown us,[1] they have a lot more in common than you might think.

On 13 March 2024, the European Parliament approved the Artificial Intelligence Act,[2] a European Union (EU) Regulation proposed by the European Commission back in 2021. While the law has yet to be published in the Official Journal of the EU, it is fair to say that it makes March 2024 a historical month for Artificial Intelligence (‘AI’) regulation.

In addition to the EU’s landmark piece of legislation, the Council of Europe’s path towards the first legally binding international instrument on AI has also made progress with the finalisation of the Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law.[3] As the EU’s cornerstone legislation, this will be a ‘first of its kind’, aiming to uphold the Council of Europe’s legal standards on human rights, democracy and the rule of law in relation to the regulation of AI systems. With its finalisation by the Committee on Artificial Intelligence, the way is now open for future signature at a later stage. While the non-self-executing nature of its provisions is to be expected, some doubts remain as to its full potential, given the high level of generality of its provisions, and their declarative nature.[4]

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Editorial of March 2024

On March 19, 2024March 19, 2024 By officialblogunioIn EditorialsLeave a comment

By the Alessandra Silveira

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On inferred personal data and the difficulties of EU law in dealing with this matter

The right not to be subject to automated decisions was considered for the first time before the Court of Justice of the European Union (CJEU) in the recent SCHUFA judgment. Article 22 GDPR (on individual decisions based solely on automated processing, including profiling) always raised many doubts to legal scholars:[1] i) what a decision taken “solely” on the basis of automated processing would be?; ii) would this Article provide for a right or, rather, a general prohibition whose application does not require the party concerned to actively invoke a right?; iii) to what extent this automated decision produces legal effects or significantly affects the data subject in a similar manner?; iv) will the provisions of Article 22 GDPR only apply where there is no relevant human intervention in the decision-making process?; v) if a human being examines and weighs other factors when making the final decision, will it not be made “solely” based on the automated processing? [and, in this situation, will the prohibition in Article 22(1) GDPR not apply]?

To these doubts a German court has added a few more. SCHUFA is a private company under German law which provides its contractual partners with information on the creditworthiness of third parties, in particular, consumers. To that end, it establishes a prognosis on the probability of a future behaviour of a person (‘score’), such as the repayment of a loan, based on certain characteristics of that person, on the basis of mathematical and statistical procedures. The establishment of scores (‘scoring’) is based on the assumption that, by assigning a person to a group of other persons with comparable characteristics who have behaved in a certain way, similar behaviour can be predicted.[2]

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The Italy–Albania Protocol on migration management: between new schemes of asylum externalisation and risks of systematic violations

On March 8, 2024January 10, 2025 By officialblogunioIn EssaysLeave a comment

Valentina Faggiani (Associate Professor of Constitutional Law at University of Granada)

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The trend towards the externalisation of migratory policy has been reaffirmed in the recent Italy–Albania Protocol, whose objective is to institute a new model. This Protocol aims at intervening to overcome a real problem: the systemic crisis of asylum that Italy is suffering. The idea that inspires it and the scheme are clear and have some original profiles: if the situation in the reception centres in Italy is unsustainable, why not transfer migrants in irregular situation and asylum seekers to reception centres instituted outside the Italian territory, but managed, controlled and financed by Italy? In this country, particularly in frontline areas such as Lampedusa, on the one hand, foreigners suffer serious and systematic violations of fundamental rights; on the other hand, there has been a strong feeling of uneaseamong the local population, who live in an unsafe environment characterised by the proliferation of criminality and situation of violence.

The idea has the characteristic of extrema ratio: the purpose of building a new model of migratory flux management. Regarding the innovation profiles, it is interesting to observe that in this case Italy does is not delegating, as it did in the Memorandum of Understanding with Libia, the liability for controlling the fluxes and for pushing back the migrants to their country of origin, but it assumes the management of all phases, and it extends the jurisdiction and the cost that it implies. It is a much more extensive and complex project. Indeed, the political and economic context of Albania apparently offers more guarantees than other countries.

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Summaries of judgments: OT v Council of the European Union | Abramovich v Council

On March 1, 2024May 8, 2024 By officialblogunioIn Summaries of judgmentsLeave a comment

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

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Judgment of the General Court (First Chamber, Extended Composition), 15 November 2023, Case T-193/22, OT v Council of the European Union

Facts

Following the military aggression perpetrated by the Russian Federation (‘Russia’) against Ukraine on 24 February 2022, the Council of the European Union (‘the Council’) adopted several acts by which it added the applicant’s name to the lists of persons, entities and bodies supporting actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, adopted by the Council since 2014.

The Council imposed on the applicant, OT, a businessman of Russian nationality, the freezing of his banking funds and assets, in accordance with Article 2(1) (d) and (g) of Decision 2014/145/CFSP of 17 March 2014[1], on the ground that, he is a major shareholder of the Russian conglomerate ‘Alfa Group’, one of Russia’s largest taxpayers. As such, the applicant is considered to be one of the most influential persons in the country and has links with the Russian President. According to the Council, Vladimir Putin rewarded the Alfa Group for its loyalty to the Russian authorities.

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New UNIO issue now online

On February 23, 2024 By officialblogunioIn NewsLeave a comment

By the Editorial Team

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The Editorial Board is happy to announce that a new issue of the UNIO – EU Law Journal is now online. The 9(2) issue of UNIO includes contributions from various highly respected scholars and young academics and addresses issues such as i) regulation and governance of artificial intelligence; ii) the European data market; iii) the influence of European Union personal data protection standards in Latin America; iv) decentralised energy production and its intersection with the right to the city and environmental, climate, and energy-related concerns; v) the European Union’s strategy for the circular economy; and vi) European cyberculture.

We hope this new issue is relevant for our readers and would like to remind you that we are accepting submissions at UNIO and also at our blog.

You may find UNIO’s 9(2) issue here.

Editorial of February 2024

On February 15, 2024 By officialblogunioIn EditorialsLeave a comment

By the Editorial Team

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The Autumn Eurobarometer and the expectations of European citizens

The Eurobarometer is an instrument used by the institutions of the European Union (EU) to find out and assess the state of European public opinion. Strictly speaking, it is a method of collecting public perceptions, like a survey or poll. Naturally, it focuses on issues and problems that directly concern European integration, but it also covers issues that are relevant from a political, economic, and social point of view. It is a kind of “pulse measuring” of the EU and its citizens. The rigour of the method used, and its credibility make Eurobarometer particularly representative of currents of thought and opinion, with relevance and use in the decision-making and political actions of the EU institutions.

This type of survey – when at all credible, despite the volatility of people’s feelings, emotions, and reactions, which are increasingly moulded by immediacy in the media – is also a factor in good governance. It therefore helps to enliven democracy. It brings the frame of mind of citizens (and therefore voters) closer to political decision-makers. It should be noted that we are increasingly moving towards post-modern democracy – in the sense of post-national, post-State democracy. This means that, with all the (relative) imprecision of the terms now used, democracy and the “popular will” can no longer be circumscribed, imprisoned, reduced to a mere electoral expression, a sporadic vote, preceded by an electoral process (campaign). Furthermore, permanent interaction between elected representatives and voters, as well as an understanding of the people’s messages and way of thinking, are integral factors in a desired democracy and political activity that is sound, transparent and fruitful in terms of satisfying the needs and aspirations of those who are governed. Knowing the reality is fundamental to defining public policies – and the people’s way of feeling and thinking is an inescapable element of that reality.

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Dr. Strangelove or: What Lights Sheds Kubrick on Today’s Union

On February 5, 2024February 5, 2024 By officialblogunioIn ReviewsLeave a comment

Gonçalo Martins de Matos (Master in Judiciary Law by the University of Minho)

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Dr. Strangelove or: How I Learned to Stop Worrying and Love the Bomb, Stanley Kubrick’s political satire black comedy film, completed, in the past Monday, 60 years of age since its release on 29^th January 1964. Often considered one of the best comedies ever made and, arguably, the best political satire of the 20^th century[1], the depths of human stupidity are surgically dissected by the keen, sagacious mind of Stanley Kubrick. More than that, Kubrick’s cautionary tale about nuclear apocalypse exposes humans in what they tragicomically have more contradictory, hypocritical and idiosyncratic.

Encompassing a wide spectrum of themes, Dr. Strangelove remains very present, shedding, like all great Art, some light on contemporary issues and events. More so in recent years, with Russia’s invasion of Ukraine, bringing to the Old Continent the dark fog of war again. Since Russia is a nuclear power, the fear of nuclear escalation invaded once again people’s hearts, reminding the great powers of the Cold War’s Mutually Assured Destruction (MAD – a fittingly ironic name, as well) doctrine. NATO members have been (well) cautious, as to avoid a backslide to the obscurity of the Cold War. Obscurity is the right word to describe the surroundings of war: freedom is suffocated, barricades are erected, and truth is the first victim.

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The New EU Pact on Migration and Asylum: from political (dis)agreements to a last chance

On January 26, 2024 By officialblogunioIn EssaysLeave a comment

Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ | Member of the Jean Monnet Module team DigEUCit ) and Rita Ferreira Gomes (Associate at Morais Leitão)

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Setting the scene

From 2020 onwards, migration and asylum have been central to both national and European Union (‘EU’) political agendas. 2023, however, was key and ended with major challenges for 2024.

By the end of 2023, the European Parliament and the Council had reached a political agreement on several key proposals included in the (New) Pact on Migration and Asylum[1] (‘New Pact’), in particular, Proposals for Regulations: i) introducing a screening of third country nationals at the external borders[2] (‘Screening Regulation’); ii) on the establishment of ‘Eurodac’[3] (‘Eurodac Regulation’); iii) on a common procedure for international protection in the Union[4] (‘Asylum Procedures Regulation’); iv) on asylum and migration management[5] (‘Asylum Migration Management Regulation’), and v) addressing situations of crisis and force majeure in the field of migration and asylum[6] (‘Crisis and Force majeure Regulation’).

Some question whether “the legislative proposals [will] have the same fate as the reform package that had been presented by the Commission in 2016”[7]. Others see the New Pact as a final opportunity to get it right, or at least deserving of “a chance to succeed”[8]. In her 2023 State of the Union speech, President von der Leyen referred to a “historic opportunity to get it over the line”, and compassionately, urged us all to get it done and prove that “Europe can manage migration effectively and with compassion”[9].

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