Editorial of May 2023

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By Pedro Madeira Froufe (Editor)
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30 years after “Maastricht”: the past and the future of integration (marking Europe’s Day)

1. November 2023 will mark the 30th anniversary of the Treaty on European Union – the Maastricht Treaty. “Maastricht” marks the beginning of a then new era in the integration process which, in a sense, may now be coming to an end. The “post-Maastricht era”, its assumptions and political meaning (guiding European integration), will most likely be different after the war in Ukraine. From this perspective, we can say that European integration has so far had two major phases: an initial phase, a path traced and, at the same time, built, from 1951 (Treaty of Paris, ECSC) to the birth of the European Union (Maastricht Treaty, 1992); and, on the other hand, an era already marked by the existence of the Union, i.e. from 1992/1993 to the present day (a “post-Maastricht” phase). The war in Ukraine heralds the inevitability of a third stage in the integration process which may to some extent redefine (widen?) the very understanding of integration – at least in a political and geostrategic sense. We will most likely be at the dawn of a third phase of “post-war” European integration in Ukraine.

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Once again on the rule of law in Romania. The risk that thousands of defendants would not face criminal liability: a new wave of requests preliminary rulings at the CJEU

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Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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The decisions of the Constitutional Court of Romania once again created a wave of requests for preliminary rulings at the CJEU. Currently there are ten such new referrals that the ordinary courts in Romania (Brașov Court of Appeal, Bucharest Court of Appeal, Bistrița First Instance Court) have submitted or are going to submit after drafting the decisions,[1] under Article 267 of the Treaty on the Functioning of the European Union. In fact, one of the requests (case C-107/23 PPU, Lin) will be heard in an urgent preliminary ruling procedure, therefore, in a very short time, a solution is expected from the CJEU, as the pleadings are scheduled for 10 May 2023. Another reference for a preliminary ruling was dismissed in a peculiar manner, as a result of the admission by the High Court of Cassation and Justice – Criminal Division of the request to transfer the hearing of the case, the High Court noting the fear of a defendant, judged in several cases in which he has such a capacity, regarding the referral to the CJEU.

In the domestic cases in which these requests were submitted, the accused requested the application of the principle of the most favorable criminal law (lex mitior) in the situation where a decision of the Constitutional Court of Romania declared unconstitutional a legal provision (Article 155 par. (1) of the Romanian Criminal Code) regarding the interruption of the limitation period of criminal liability (Decision no. 358/2022). To do so, the Constitutional Court argued the passivity of the legislator, which did not intervene to bring the legal text into agreement with another decision of the Constitutional Court, issued four years earlier (Decision no. 297/2018). During that time the case law of the common courts formed and attempted to interpret the existing in law in accordance with the Constitutional Court’s decision, the practical consequence of reducing to half the limitation period for all criminal acts for which a final judgment of conviction was not issued prior to the first decision of the Constitutional Court and of terminating the criminal proceedings against the accused in question.

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From the Digital Services package to the Digital Markets Act: the road to a (more) secure, open, and fundamental rights-friendly digital space

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Inês Neves (Lecturer at the Faculty of Law, University of Porto | Researcher at CIJ - Centre for Legal Research | Member of the Jean Monnet Module team DigEUCit)
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Aware of the shortcomings arising from the lack of changes to the European Union’s legal framework governing online platforms and digital services, practically since the adoption of the Directive on electronic commerce[1] of 2000, the European Commission presented the Digital services Act package[2] in December 2020. It seeks to ensure and strengthen European digital sovereignty in terms that guarantee fundamental rights and the affirmation of the Union (also on the international stage) as a community of values and rights whose applicability should not depend on the online vs. offline divide. To this end, the options initially pursued, favouring non-interference, minimal regulation,or even the immunisation of intermediaries from any liability, soon proved insufficient to respond to the new digital challenges.

The imperative to provide European citizens and businesses with a secure digital space, respectful of fundamental rights, as well as open, contestable, and fair, is therefore at the origin of a fundamental paradigm shift of increasing responsibility that marks the genetic identity of the digital services package. The vision of a “minimal” European Union is thus replaced by the imposition of a set of obligations on platform service providers, according to a model of ex-ante regulation.

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Article 12-A and the presumption of an employment relationship for digital labour platforms

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Teresa Coelho Moreira (Associate Professor with Aggregation at the Law School of the University of Minho | Integrated member of JusGov )
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Nowadays there is an app for everything or almost everything, from simpler activities, such as food delivery, to more complex ones, such as providing legal services, with new digital platforms emerging every day. Indeed, in theory, any activity can be transformed into a task that can be performed through digital platforms and we witnessed this during the pandemic.

In view of this situation, one of the issues that assumes enormous importance is the qualification of the existing relationships between those who provide the activity in digital platforms, with numerous cases having been already ruled around the world.

Bearing this situation in mind, the importance of establishing presumptions increases. However, the presumption provided for in Article 12 of the Portuguese Labour Code, although positive, was envisaged for typical labour relations, for employment relations in the pre-digital era. Regarding the new ways of providing work, the work in digital platforms, it is necessary to recognize the inadequacy of the presumption of employment to face the emerging problems of the new ways of working through digital platforms. Factors such as, inter alia, the ownership of work equipment and instruments, the existence of a work schedule determined by the beneficiary of the activity and the payment of a certain remuneration, are classic signs of legal subordination, but they are hardly operational signs to address the new types of dependency resulting from the provision of services for a particular company, via platforms.

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Finally, the ECJ is interpreting Article 22 GDPR (on individual decisions based solely on automated processing, including profiling)

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Alessandra Silveira (Editor)
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1) What is new about this process? Article 22 GDPR is finally being considered for before the European Court of Justice (ECJ) – and on 16 March 2023, the Advocate General’s Opinion in Case C-634/21 [SCHUFA Holding and Others (Scoring)][1] was published. Article 22 GDPR (apparently) provides a general prohibition of individual decisions based “solely” on automated processing – including profiling – but its provisions raise many doubts to the legal doctrine.[2] Furthermore, Article 22 GDPR is limited to automated decisions that i) produce effects in the legal sphere of the data subject or that ii) significantly affect him/her in a similar manner. The content of the latter provision is not quite clear, but as was suggested by the Data Protection Working Party (WP29), “similar effect” can be interpreted as significantly affecting the circumstances, behaviour or choices of data subjects – for example, decisions affecting a person’s financial situation, including their eligibility for credit.[3] To this extent, the effectiveness of Article 22 GDPR may be very limited until EU case law clarifies i) what a decision taken solely on the basis of automated processing would be, and ii) to what extent this decision produces legal effects or significantly affects the data subject in a similar manner.

2) Why is this case law so relevant? Profiling is an automated processing often used to make predictions about individuals – and may, or may not, lead to automated decisions within the meaning of the Article 22(1) GDPR. It involves collecting information about a person and assessing their characteristics or patterns of behaviour to place them in a particular category or group and to draw on that inference or prediction – whether of their ability to perform a task, their interest or presumed behaviour, etc. To this extent, such automated inferences demand protection as inferred personal data, since they also make it possible to identify someone by association of concepts, characteristics, or contents. The crux of the matter is that people are increasingly losing control over such automated inferences and how they are perceived and evaluated by others. The ECJ has the opportunity to assess the existence of legal remedies to challenge operations which result in automated inferences that are not reasonably justified. As set out below, the approach adopted by the Advocate General has weaknesses – and if the ECJ adopts the conditions suggested by the Advocate General, many reasonable interpretative doubts about Article 22 GDPR will persist.

3) What questions does Article 22 GDPR raise?  Does this Article provide for a right or, rather, a general prohibition whose application does not require the party concerned to actively invoke a right?  What is a decision based “solely” on automated processing? (which apparently excludes “largely” or “partially” but not “exclusively” automated decisions). Will the provisions of Article 22 GRPD only apply where there is no relevant human intervention in the decision-making process? 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]?

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Union in a time of war: On the Judgment “Violetta Prigozhina”, Case T-212/22

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Pedro Madeira Froufe (Editor)
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I

On 8 March 2023, the General Court delivered a judgment in the case of Violetta Prigozhina (Case T-212/22),[1] whose applicant is an octogenarian lady and mother of the well-known Russian “war entrepreneur” who leads the pro-Kremlin mercenary group called the “Wagner Group”.

The European Union (EU) has always had a sufficiently clear and assertive position towards the invasion of Ukraine by the military forces of the Russian Federation, which began on 24 February 2022. Support for Ukraine stems from many factors, not least the Ukrainian people’s desire to move closer to the European way of life. The so-called “Euromaidan revolution” that began in Kiev in 2014 reacted against the former President Víktor Yanukóvytch for having refused to sign the agreements on trade cooperation and, in general, greater openness to the EU, apparently under pressure from Moscow.[2] On the other hand, the military action (aggression) unleashed in 2022 by Russia against Ukraine calls into question the international order and the assumptions of peace built up after the Second World War. From the perspective of the EU (and the political and civilisational bloc currently referred to as the “West”, associated with the framework of the democratic rule of law), this is a serious violation of international law.

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New CitDig website

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The Editorial Team
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On 1 October 2022 the European Commission awarded a “Jean Monnet Centre of Excellence” to the University of Minho under the Erasmus+ Programme. It is entitled “Digital citizenship and technological sustainability: pursuing the effectiveness of the CFREU in the digital decade” (CitDig) and is coordinated by Alessandra Silveira. In this context, CitDig presents its new website and electronic repository entitled “Espaço UNIO”, under which content related to European Union law will be made available, through various formats that record the interaction between its researchers.

You may find CitDig’s new website and the Espaço UNIO repository here: http://citdig.direito.uminho.pt/en/.

Sustainability and trade marks

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Maria Miguel Carvalho (Associate Professor with Habilitation, School of Law, University of Minho, Portugal. Director of Research Centre for Justice and Governance, School of Law, University of Minho, Portugal)
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Introduction*

The importance of intellectual property [IP] in the pursuit of goal 9 of the 2030 Agenda (build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation) is often mentioned and, upon the initiative of the World Intellectual Property Organization [WIPO], was already the leitmotif of the World IP Day in 2020 (“Innovate for a Green Future”)[1], although for the most part only patents and utility models are mentioned. However, due to a growing awareness on the part of consumers [the “green” consumers (LOHAS consumers)][2] on the impact of their choices, in recent years the role that trade marks might play in this domain is also emerging[3] (e.g., the 2022 MARQUES Annual Conference theme: “Celebrating marks: How sustainability and technology will shape the future of brands”).

Trade marks are distinctive signs of products or services that provide relevant information to consumers. They can therefore play a highly relevant role concerning, in particular, the increased choice of products or services distinguished with “green” signs, and thus also encourage companies to adopt (more) sustainable practices. Companies, aware of this fact, have been increasingly adopting the so-called green branding, which consists in using trade marks that suggest that the products or services they indicate are environment-friendly (green marks, eco marks), for example, because they are recyclable.

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Summaries of judgments: Minister for Ecological Transition and Prime Minister | Puig Gordi e o

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Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution), Case C‑61/21, EU:C:2022:1015

Reference for a preliminary ruling – Environment – Directives 80/779/EEC, 85/203/EEC, 96/62/EC, 1999/30/EC and 2008/50/EC – Air quality – Limit values for microparticles (PM10) and nitrogen dioxide (NO2) – Exceeded – Air quality plans – Damage caused to an individual on account of deterioration of the air resulting from the exceedance of those limit values – Liability of the Member State concerned – Conditions for establishing that liability – Requirement that the rule of EU law infringed be intended to confer rights on the individuals who have been harmed – No such intention

Facts

JP argues that the deterioration of the ambient air quality in the Paris agglomeration, where he lives, was the result of a breach by the French authorities of their obligations under Directive 2008/50, in so far as the limit values for microparticles (PM10) and nitrogen dioxide (NO2)  laid down in Annex XI of that directive had been exceeded. JP applied to the tribunal administratif de Cergy-Pontoise (Administrative Court, Cergy-Pontoise, France) seeking, inter alia, annulment of the implied decision of the Prefect of Val-d’Oise (France), which is part of the agglomeration of Paris, refusing to take the necessary measures to address his health problems linked to air pollution in that agglomeration, problems which began in 2003; and compensation from the French Republic for the various heads of damage which he claims to have suffered on account of that pollution.

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Editorial of February 2023

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By Miguel Pereira (Master’s student in European Union Law at the University of Minho)
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Truffle hunting: finding meaning in the European Declaration on Digital Rights and Principles for the Digital Decade

Truffles are small, hard to find and delicate fungi that tend to grow around tree roots. Hunting and extracting them requires expert knowledge passed down through generations, persistence, attention to details and, usually, the helpful nose of a well-trained dog. For a jurist, sifting through the ever-growing body of declarations, communications, positions, resolutions and decisions of the EU institutions often requires the same level of dedication and attention to detail, in an effort to find meaning and footholds in what at first sight can be chalked up to pure political jargon – in essence, an effort to find truffles.

In December 2022, the EU institutions issued two instruments that lay out their vision for a Digital Europe and the principles that should govern its development: the Digital Decade Policy Programme 2030 (“Digital Decade Programme”) and the European Declaration on Digital Rights and Principles for the Digital Decade (“Declaration on Digital Rights”). Both instruments have been in the works for a while and, even though falling short of expectations due to their limited legal relevance, they’re still noteworthy as a summary of the EU’s digital ambitions, priorities and concerns. They also embody a change of paradigm that legal scholarship has strived to identify and document over the past few years: a refocusing of digital policy around the protection of fundamental rights and the adoption of a digital constitutionalist stance in the development of said policy and legislation.

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