Editorial of July 2023

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By Alessandra Silveira (Editor) and Maria Inês Costa (PhD candidate, School of Law, University of Minho)
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Regulating Artificial Intelligence (AI): on the civilisational choice we are all making

It is worth highlighting the role of the European Parliament (EP) in taking its stance on the negotiation of the AI Regulation, which in turn aims to regulate the development and use of AI in Europe.[1] With the EP having approved its position, European Institutions may start trilogue negotiations (the Council voted on its position on December 2022). The AI Regulation that will apply across the European Union (EU) will only enter into force if the co-legislators agree on a final wording.

The AI Regulation follows a risk-based approach, i.e., establishes obligations for those who provide and those who use AI systems, according to the level of risk that the application of the AI system entails: is the risk high, is it low, is it minimal? In other words, there is a hierarchisation of risks, and the different levels of risk will correspond to more or less regulation, more or less impositions, more or less restrictions. The EP’s position, even if introducing further safeguards (for example, on generative AI) does not deviate from the idea that the Regulation should protect citizens without jeopardising technological innovation. To this extent, systems with an unacceptable level of risk to people’s safety should be banned, and the EP extended the list of prohibited AI uses under the Commission’s original proposal. These are, for instance, systems used to classify people based on their social behaviour or personal characteristics (such as Chinese-style social control systems); emotion recognition systems in the workplace and educational establishments; predictive policing systems based on profiling or past criminal behaviour; remote and real-time biometric identification systems (such as facial recognition) in publicly accessible spaces, etc.

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The Nature Restoration Law in the European Parliament

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Isabel Estrada Carvalhais (MEP | Full Member of the Committee of Agriculture and Rural Development and of the Committee of Fisheries | Member of the Group of the Progressive Alliance of the Socialists and Democrats)
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Introduction[1]

This is not an article with academic purposes and even its modest informative and reflective intent is far from complete. Its main aim is to contribute to further information and reflection on a quite important topic presently on top of the European political agenda: the Nature Restoration Law.

I suggest we look at the European Commission’s (EC) proposal for a regulation on the restoration of nature (hereinafter referred to as the Nature Restoration Act or NRL), at the on-going negotiation process in the European Parliament (EP) with recent votes in two associated committees (the Committee on Agriculture and Rural Development and the Committee on Fisheries) and in the EP leading committee (Committee on the Environment, Public Health and Food Safety).               

Let us start from the beginning and the beginning is not in the EC proposal itself, but a bit further back, in the conclusions of the European Council of 20 June 2019, immediately after the European elections of 26 May.

The conclusions provided (and still do) a clear preview of the key priorities for action in the European political agenda, as understood by the heads of state and government of the 27 Member States. It is important here to make this reference especially in a social context where we tend to ignore (or are instrumentally led to ignore) the active role that our states and our rulers play in the design of the European project. Chapter III of the conclusions of the European Council[2] reads as follows: “The European Council underlines the importance of the Climate Action Summit that the UN Secretary-General will organise in September 2019 to strengthen global climate action in order to achieve the objective of the Paris Agreement, including by pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, and welcomes the active participation of Member States and the Commission in the preparations.”

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Open data and re-use of public information – smart cities as open data ecosystems

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Joana Covelo de Abreu (Editor and Key-staff member of CitDig Jean Monnet Centre of Excellence)
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The European Union (EU) set a wider objective until 2030: to live a digital decade, where (personal and public) data is essential to grasp a data economy, i.e., an economy capable of, by promoting the European values, enhancing its growth through data processing, making European citizens to live better. In fact, it is expected that, until 2025, the volume of produced data can achieve the amount of 175 zettabytes worldwide: along with an increase of personal data processing, there is a growing trend concerning non-personal industrial and public data in the EU which must be properly exploited.[1]

Concerning public data, it should be widely available to empower people since, by doing so, we can reach a digitally “open, fair, diversified, democratic and confident” Europe. So, if leading a data economy is to be achieved, along with structural solutions concerning i) connectivity; ii) processing and storage of data; iii) computational capacity; and iv) cybersecurity, the EU ought to be able to v) improve its governing structures on data processing; and vi) widening quality data repositories where data can be used and reused.

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Summaries of judgments: HYA and Others (Grounds for authorising telephone tapping) | Colt Technology Services and Others

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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 (Third Chamber) of 16 February 2023, HYA and Others (Grounds for authorising telephone tapping), Case C-349/21, EU:C:2023:102.

Reference for a preliminary ruling – Telecommunications sector – Processing of personal data and the protection of privacy – Directive 2002/58/EC – Article 15(1) – Restriction of the confidentiality of electronic communications – Judicial decision authorising the interception, recording and storage of telephone conversations of persons suspected of having committed a serious intentional offence – Practice whereby the decision is drawn up in accordance with a pre-drafted template text that does not contain individualised reasons – Second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union – Obligation to state reasons

Facts

In 2017, the President of the Spetsializiran nakazatelen sad (Specialised Criminal Court, Bulgaria), based on reasoned, detailed and substantiated applications from the Spetsializirana prokuratura (Specialised Public Prosecutor’s Office, Bulgaria), authorised the telephone tapping of four individuals suspected of committing serious intentional crimes. In giving reasons for his decisions, the President followed the existing national judicial practice of using a pre-drafted template designed to cover all possible cases of authorisation, that did not contain individualised reasons and which, in essence, merely stated that the requirements of the national legislation on telephone tapping, referred to in the template, had been met, as well as the length of time during which the use of special investigative methods was authorised.

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Editorial of June 2023

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By Joana Covelo de Abreu (Editor and Key-staff member of CitDig Jean Monnet Centre of Excellence)
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2023 EU Justice Scoreboard – how independent and efficient justice systems can strengthen the business dimension in the EU through digitalisation?

The current European Semester is devoted to sustainable economic growth, within the EU’s annual cycle of economic policy coordination. Insofar, in the 2023 annual sustainable growth survey [COM(2022) 780 final], the European Commission stressed that “[g]ood governance and respect for the rule of law, in particular independent, quality and efficient justice systems […], are key determinants of an economy that works for people” – in fact, there is a “link between effective justice systems and Member States’ business environment” since “[w]ell-functioning and fully independent justice systems can have a positive impact on investment and are key for investment protection, and therefore contribute to productivity and competitiveness”.

Published last June 8th, 2023, the EU Justice Scoreboard [COM(2023) 309 final] acts as a comparative tool to assist the EU and its Member States to understand the justice systems’ state so it can be improved “by providing objective, reliable and comparable data on a number of indicators relevant for the assessment of the efficacy, quality and independence of justice systems in all Member States”.

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New UNIO issue now online

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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 8(2) issue of UNIO includes contributions from various highly respected scholars and young academics and addresses issues such as a) the deployment of public consultations and referenda in the context specially important political issues (e.g. secession), b) ecological transition, c) tools available to the EU to combat rule of law backsliding, d) the common European asylum system, e) fostering equality and non-discrimination in the EU, and f) and the existence of legal remedies under the GDPR to challenge automated decision-making and profiling resulting in unjustified inferences about a data subject.

We hope this new issue pleases both our readers and authors and would like to remind you that we are accepting submissions at UNIO and also at our blog.

You may find UNIO’s 8(2) issue here.

The internalisation of EU law by citizens and how it operates a threat to EU democratic values

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André Lima Machado (Master in European Union Law - UMINHO)
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1. Introductory remarks

Last May 10, the Head of State of the Portuguese Republic, Marcelo Rebelo de Sousa, addressed the European Parliament in Strasbourg on the occasion of the Europe Day celebrations.[1] President Marcelo – as he is affectionately called by the Portuguese – called for a stronger Europe, a Europe that leads and anticipates, rather than a Europe that follows events. He went on to explain that the Portuguese believe in the future of Europe: in a Europe that is not the Europe of Heads of State, Heads of Government, or party leaders, but rather a Europe of European women and men, because without both there is not and there never will be a strong Europe, within itself and in the world. This is the challenge – said President Marcelo – there is not much time left to anticipate it, and the millions of Europeans deserve it. 

Moreover, this is a recurring idea in President Marcelo’s speech: “Europe cannot waste time”. And why is that? Because the circumstances of integration have changed substantially. The Portuguese President began by recalling the last time he spoke to MEPs, seven years ago, at the start of his first mandate. It was another time, another world, another Europe. He listed the changes that had occurred since then, such as the pandemic, the UK’s decision to opt out, and the Russian invasion of Ukraine. “In another time, another world, another Europe”, people still believed in the international order, in the existing balance of power, in the advancement of human rights, in the victory of diplomacy over war. People believed in the reform of universal institutions (even if postponed) and in the European security inherited from the 20th century (even if weakened). They believed in the primacy of globalisation, multilateralism, and common causes.

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Brazil’s Recent Ratification of the Budapest Convention on Cybercrime

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Bruno Calabrich (Public Prosecutor (Brazil) | PhD candidate at the University of Brasília (UnB).)
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Cybercrime is a growing issue in today’s digital age, with criminals taking advantage of the interconnectedness and dependency on technology for personal and organizational activities. Cybercrime is not a new problem and has been addressed by the Council of Europe with the Budapest Convention on Cybercrime in 2001, which entered into force in 2004 after ratification by five Council member countries. This international treaty was conceived to serve as a framework for nations to coordinate and cooperate in the investigation, prosecution, and prevention of cybercrime. As highlighted in its preamble, the Convention recognizes the crucial importance of establishing common criminal law and criminal procedural law in order to facilitate “detection, investigation and prosecution at both the domestic and international levels and by providing arrangements for fast and reliable international co-operation”.[1] Chang and Grabosky point out that “the Budapest Convention is the first and only international convention to encourage harmonization of cyber laws and regulations, and to build cooperation among nations in controlling cybercrime”.[2] In its core fundamentals, Member States commit to work together to provide quick and effective responses to cyber-attacks, exchange information on emerging threat trends and assist each other in investigating cross-border criminal activities.

Brazil, as a leading South American country in terms of technological advances and digital economy, has also recognised the importance of addressing these issues. Indeed, after a long period in which little importance was given to the topic (particularly when compared to the European tradition), Brazilian legislation has shown significant advances in several matters related to digital law, cybercrime and personal data protection in recent years. Its main normative milestones are Federal Statute No. 12.737/2012,[3] which “establishes the criminal typification of cybercrimes” – also known as the “Carolina Dieckman Act” –, Federal Statute No. 12.965/2014[4] – the Brazilian Internet Civil Rights Framework –, and Federal Statute No. 13.709/2018[5] – the Brazilian General Data Protection Act (“Lei Geral de Proteção de Dados Pessoais”, or LGPD). In Brazilian Courts, there have also been important decisions, such as the ruling by the Federal Supreme Court (STF) on ADC (“Ação Direta de Constitucionalidade”, a declaratory lawsuit of constitutionality of federal laws or normative acts) no. 51,[6] in February 2023, which confirmed the validity of court orders issued in the interest of criminal investigations for technology companies running internet applications in Brazil, even when the requested data is stored on servers located abroad. Prior to that, in May 2020, the STF, in the judgment of ADI (“Ação Direta de Inconstitucionalidade”, a direct lawsuit of unconstitutionality of federal or state laws or normative acts), no. 6387 MC-Ref/DF, recognized for the first time the protection of personal data as an autonomous fundamental right, not explicitly stated, but inferred from an integrated reading of several provisions of the Brazilian Constitution.[7] This decision prepared the grounds for the enactment of Constitutional Amendment no. 115/22, in February 2022, which expressly included the protection of personal data in the wording of the Constitution among the fundamental rights and guarantees.[8]

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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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