A specter is haunting Spain — the specter of illiberalism: A young democracy facing its ghosts

Rubén Díez (Professor of Sociology at Complutense University)
           

Populism shows a natural tendency to strain the independence of public functions, the autonomy of civil society and media, as well as the institutional mechanisms regulating the civil sphere in liberal democracies. Obama reminded us of this during the funeral of Republican John McCain in September 2018, implicitly referring to President Trump. A portion of Obama’s eulogy highlighted the rules and principles of rational-legal legitimization that govern our democracies. These include adherence to the duties and responsibilities of public office, as well as the norms regulating voting and the party system. Civil organizations, alongside the political class, must take responsibility for safeguarding these principles to prevent populism from taking root within their ranks and political entities. As Steven Levitsky and Daniel Ziblatt remind us in “How Democracies Die”, more essentialist forms of democracy—with demagogic speeches and leaders, populist organizations, plebiscitary practices, and Caesarism—civil institutions see a reduction in their mediating and arbitrating capacity for the multiplicity of material and ideal interests, hindering the expression of civil solidarity. The leader, party, or movement positions itself as the voice of the people, appealing to collective identities exclusively articulated in a binary key of belonging.

Illiberalism in its most extreme forms, especially when it seizes power, thrives by co-opting civil institutions and intermediate spaces. In addition, it silences or sidelines those who articulate alternative positions to its political project. This is achieved by subverting the law and discrediting dissenting voices often through the civil exclusion of discordant voices. If the ultimate expression of this idealized political project successfully materializes in a specific place and time, it opens the door for an anti-democratic populist project to crystallize. Some recent examples include traits of this ideal definition of illiberal scenarios: the leadership of Viktor Orbán in Hungary, Law and Justice in Poland, the Brexit referendum in 2016, the declaration of independence in Catalonia in 2017, and the Trump administration in the USA. Sadly, a progressive and accelerated trend of democratic degradation may be observed in Spain as 2023 ends, following the formation of a new coalition government led by the Spanish Socialist Workers’ Party (PSOE) with the support of left-wing populist, nationalist, and separatist forces.

Continue reading “A specter is haunting Spain — the specter of illiberalism: A young democracy facing its ghosts”

Summaries of judgments: Asociaţia «Forumul Judecătorilor din România» | Juan

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 (First Chamber) of 7 September 2023, Asociaţia «Forumul Judecătorilor din România», Case C‑216/21, EU:C:2023:628

Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Article 2 TEU – Second subparagraph of Article 19(1) TEU – Rule of law – Charter of Fundamental Rights of the European Union – Article 47 – Independence of judges – National legislation altering the scheme for the promotion of judges

Facts

In 2019, the Consiliul Superior al Magistraturii (Superior Council of Magistracy, Romania) (CSM) altered the procedure for the effective promotion of judges to the regional courts and the courts of appeal by replacing the old written exams with an assessment of candidates’ work and conduct during their last three years of service. The Asociaţia «Forumul Judecătorilor din România» (‘Forum of Judges of Romania’ Association) and YN brought an action before the referring court, the Curtea de Apel Ploiești (Court of Appeal, Ploieşti, Romania), for partial annulment of that decision.

Continue reading “Summaries of judgments: Asociaţia «Forumul Judecătorilor din România» | Juan”

Editorial of December 2023

By Alessandra Silveira (Editor) 

Is there a threat to the rule of law in the EU as a consequence of the government agreement in Spain and the institutional crisis in Portugal?

The Government agreement in Spain (the amnesty proposal for the Catalan secession process) and the institutional crisis in Portugal (the resignation of the Government due to signs of influence peddling) have an impact on the functioning of the European Union (EU) because they could jeopardise the value of the rule of law on which the Union is founded (Article 2 TEU).

What is the meaning of the principle (i.e. the legal norm) of the rule of law in the EU? It means that the exercise of power is subject to legal rules and procedures (i.e. legislative, executive, and judicial procedures) that allow citizens to monitor (and possibly challenge) the legitimacy of decisions taken by public authorities. The basic idea of the rule of law is therefore to submit power to the law. This fundamental norm conditions the accession of a candidate State to the EU – and authorises the Union to monitor the proper functioning of the rule of law in the various Member States.

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The regulation of non-invasive neurotechnologies in the EU single market: A rights-orientated approach in a goldmine of data

Bárbara Antunes Goldman (Master's student in European Union Law at the School of Law of the University of Minho)
           

The Spanish Presidency of the Council of the European Union, which runs from 1 July to 31 December 2023, has expressed its commitment to the digitalisation of Europe, especially with regard to raising awareness of the need for proper regulation of non-invasive neurotechnologies in the European Union (EU) and preparing its Member States for what lies ahead.

To this end, in October 2023, an informal ministerial meeting was held in the city of León, where the Telecommunications and Digital Ministers of the EU Member States met to discuss the paths to be taken so that the EU can consolidate itself as a global reference in the protection and recognition of digital rights. This meeting resulted in the León Declaration on European Neurotechnology: A Human Centric and Rights-oriented Approach.[i]

Neurotechnology is a significant part of the current wave of technological developments that converge neuroscience, digitalisation, and artificial intelligence, promising remarkable improvements in mental health, well-being, and productivity. This novel neurotechnology offers “devices and procedures used to access, monitor, investigate, assess, manipulate, and/or emulate the structure and function of the neural systems of natural persons.[ii]

Continue reading “The regulation of non-invasive neurotechnologies in the EU single market: A rights-orientated approach in a goldmine of data”

Beyond the Digital Markets Act: much more than a piece of legislation

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 - A Digital Europe for Citizens. Constitutional and policymaking challenges) and Luísa Amaro de Matos (LL.M. in European Legal Studies – College of Europe, Bruges)
           

On 6 September 2023, the European Commission (‘EC’) designated a first set of six gatekeepers in relation to 22 core platform services(‘CPS’)[1]. These undertakings must ensure compliance with the positive and negative obligations set out in the Digital Markets Act (‘DMA’)[2] by March 2024.[3]

Meanwhile, the DMA is already having an impact, with Facebook and Instagram, for instance, offering European users ‘the choice’ to pay a monthly subscription to use their social networks without any advertising (ads).[4]

On 17 November 2023, the Court of Justice of the European Union (‘CJEU’) confirmed that Apple, Bytedance and Meta had brought actions challenging the designation of (some of) their core platform services,[5] namely Titktok as regards Bytedance (T-1077/23); Facebook Marketplace and Messenger concerning Meta (T-1078/23), and App Store and iMessage for Apple (Cases T-1079/23 & T-1080/23).

Continue reading “Beyond the Digital Markets Act: much more than a piece of legislation”

The need for an egalitarian ethical framework for emerging technologies

Manuel Protásio (PhD Candidate at the School of Law of the University of Minho. FCT research scholarship holder – Bolsa UI/BD/152801/2022) 
           

The blurring boundary between humans and machines introduces a crucial dichotomy between consciousness and information, shaping the dynamics of our technological engagement and the “limbo” between humans and technologies, situated around perception, is central to how the law assesses its potential effects on human behaviour.

According to Kantian philosophy, the act of perception is a private, subjective, and observer-dependent mechanism, which, by its nature, grants the subject a sensation of agency over the physical reality – their environment. This feeling of agency can be understood as the empowering subjective experience that is often translated into the individual’s freedom and autonomy. If it is true that the synthetical perception confers agency over the perceived objects as they are read into our reality, it must also be true that illusions – reasoning mistakes based on our perception – can be triggered if our perception follows systematic errors that occur whenever we store wrong information about our reality regarding perceived objects, or when we use the wrong model of perception to interpret the external world.[1] 

What technologies like Augmented Reality (AR) or Artificial Intelligence (AI) will cause to our perception in the short and long-term is to convey analytical information from the physical world and thus trigger potential changes in our synthetical perception, which can lead to the loss of agency of our own our reality. Virtual Reality (VR), on the other hand, can trigger the same effect by deceiving the synthetical sensory feedback of our biological perception and replicating it through technological means.   

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Disinformation overload on social networks: is the European “marketplace of ideas” threatening to collapse

Iolanda Rodrigues de Brito  (PhD, Lecturer at the Ius Gentium  Conimbrigae – Human Rights Centre)
           

Disinformation about the Israel-Hamas conflict is flooding social networks, creating an increased risk of escalating the war.[1] Over the past few weeks, the European Commission has rushed to urge social media platforms to comply with the Digital Services Act (DSA), which came into force on 16 November 2022.[2] According to the European Commission, the DSA “sets out an unprecedented new standard for the accountability of online platforms regarding disinformation, illegal content, such as illegal hate speech, and other societal risks” and it “includes overarching principles and robust guarantees for freedom of expression and other users’ rights”.[3] 

On 25 April 2023, the Commission had designated 19 very large online platforms and very large online search engines on the ground of their number of users being above 45 million or 10% of the European Union (EU) population. These services need to comply with the full set of provisions introduced by the DSA since the end of August 2023.[4] Although the new regulation will only be generally applicable from 17 February 2024, its applicability has been anticipated in relation to very large online search engines and very large online platforms, such as social networks (article 92 of the DSA).

Continue reading “Disinformation overload on social networks: is the European “marketplace of ideas” threatening to collapse”

Summaries of judgments: Presidente del Consiglio dei Ministri and Others (European arrest warrant issued against a third-country national) | Lin

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 6 June 2023, Presidente del Consiglio dei Ministri and Others (European arrest warrant issued against a third-country national), Case C‑700/21, EU:C:2023:444

Reference for a preliminary ruling – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Grounds for optional non-execution of the European arrest warrant – Article 4(6) – Objective of social rehabilitation – Third-country nationals staying or residing on the territory of the executing Member State – Equal treatment – Article 20 of the Charter of Fundamental Rights of the European Union

Facts

On 13 February 2012, the Judecătoria Brașov (Court of First Instance, Brașov, Romania) issued a European arrest warrant (EAW) against O.G., a Moldovan national, for the purposes of executing a custodial sentence.

Finding that O.G. had proof that met the legal standard necessary to demonstrate his stable family and employment situation in Italy, the Corte d’appello di Bologna (Court of Appeal, Bologna, Italy) raised before the Corte costituzionale (Constitutional Court, Italy) questions as to the constitutionality of Article 18a of Law No 69/2005 (GURI No 98 of 29 April 2005).

Continue reading “Summaries of judgments: Presidente del Consiglio dei Ministri and Others (European arrest warrant issued against a third-country national) | Lin”

EU’s policies to AI: are there blindspots regarding accountability and democratic governance?

Maria Inês Costa (PhD Candidate at the School of Law of the University of Minho. FCT research scholarship holder – UI/BD/154522/2023) 
           

In her recent State of the Union (SOTEU) 2023 speech, the President of the European Commission Ursula von der Leyen addressed several pressing issues, including artificial intelligence (AI). In this regard, the President of the European Commission highlighted that leading AI creators, academics and experts have issued a warning about AI, stressing that “mitigating the risk of extinction from AI should be a global priority alongside other societal-scale risks such as pandemics and nuclear war”, adding that AI is advancing at a faster pace than its creators predicted.[1]

The President of the European Commission also argued that of the three pillars of the global framework for AI – guardrails, governance, and guiding innovation – guardrails is the most important, and in this sense, AI must be developed in a way that is human-centred, transparent, and accountable. Indeed, in Europe we have witnessed such an approach to the development of AI, as evidenced by various official documents and reports from different scientific communities, [2] also emphasising the need to build trust in this type of technology.

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Why is the demarcation of indigenous peoples’ territories in Brazil important to achieve European and global climate goals?

Cecília Bojarski Pires  (PhD Candidate at the School of Law of the University of Minho) 
           

Indigenous and tribal peoples’[1] ancestral territories are essential for climate stability and resilience.[2] “Their territories contain about one-third of all the carbon stored in Latin America and the Caribbean forests and 14 percent of the carbon stored in tropical forests worldwide”.[3] It is indisputable that the role played by indigenous peoples is vital in terms of global climate action, but that is not all. This article aims to demonstrate the importance of preserving indigenous peoples’ lands to achieve European and global climate goals, protect the forests and other ecosystems, conserve biodiversity, and prevent climate change. Furthermore, it is a matter of respect for human rights, a European value.

According to Villares,[4] indigenous peoples are united to the land and all its elements. Moreover, the land is not just a tangible material element but a subjective element that takes on a transcendental character. Thus, the territory is occupied and developed by everyone in that community. For that reason, indigenous peoples’ production system is, in general, much less predatory. The consequence of this special way of dealing with the land means that indigenous peoples can use natural resources without putting ecosystems at risk. It makes them indispensable for guaranteeing environmental conservation and contributing to the fight against poverty, hunger, and malnutrition.[5]

Continue reading “Why is the demarcation of indigenous peoples’ territories in Brazil important to achieve European and global climate goals?”