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

On By officialblogunioIn Essays3 Comments 

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)

On By officialblogunioIn Essays3 Comments 

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

On By officialblogunioIn EssaysLeave a comment 
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

On By officialblogunioIn Summaries of judgmentsLeave a comment 
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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On the triggering of the EU’s conditionality mechanism: what has been done and what could follow

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Gonçalo Martins de Matos (Master in Judiciary Law by the University of Minho)
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            When the Court of Justice of the European Union (CJEU) delivered, at the beginning of the last year, the two landmark judgements Hungary v. Parliament and Council (Case C-156/21) and Poland v. Parliament and Council (Case C-157/21), the conditionality mechanism created by Regulation (EU, Euratom) 2020/2092 for the protection of the Union’s budget[1] definitely gained the green light for its implementation, in the sequence of which the Commission adopted the guidelines of application of said mechanism. On 27 April of the same year, the European Commission formally announced it would be triggering the conditionality mechanism against Hungary. After an intense period of negotiations between Brussels and Budapest, the European Commission adopted, on 18 September, a proposal on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary[2] (COM(2022) 485 final), following which the Council of the EU adopted, on 18 September, an implementing decision on the measures proposed by the Commission.

            Before we proceed with the analysis of the proposed measures and their impacts on the protection of the rule of law, we must briefly provide the necessary legal framework. As we have discussed before, the intention behind the adoption of Regulation (EU, Euratom) 2020/2092 is “the protection of the Union budget in the case of breaches of the principles of the rule of law in the Member States”, as is set out in Article 1 of the same Regulation. Article 3 of this Regulation establishes situations that may indicate a breach of the principles of the rule of law, and Article 4 stipulates the conditions for the adoption of the necessary measures to protect the same principles. Article 5 lays down the measures that can be adopted in case the Commission finds that the principles of the rule of law have been breached under the described terms, following the procedure set out in Article 6 of the Regulation. We further add that Article 5(3) enshrines a principle of proportionality when adopting those protective measures. Article 6(1) determines that the Commission may resort to the conditionality mechanism unless it considers that other procedures set out in Union legislation would allow it to protect the Union budget more effectively. Seeing that the European Commission has already resorted to Article 7 TEU and to several infringement procedures regarding the Hungarian government’s various breaches, the conditions were met to activate the conditionality regime.

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Lula’s presidency: what to expect from the European Union – Brazil relationship

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José Manuel Fernandes (Member of the European Parliament and Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil)
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Lula da Silva’s victory in Brazil’s 2022 presidential elections is an opportunity for the strengthening of relations between the European Union and Latin America’s largest country. Taking advantage of the new Brazilian government taking office on January 1, 2023, as well as the unfortunate events of January 8, when protesters invaded Brazilian institutions. In this text, I propose to address what I hope and wish for the bilateral relations between the EU and Brazil in the coming years. For my part, and as Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil, I take what I write not only as analysis, but also as political commitment.

The size and importance of Brazil continues to elude most Europeans, even the main political leaders. We perpetuate a distant and incomplete vision of what Brazil actually is: a country that represents half of Latin America, both geographically and demographically; the 10th economy in the world; one of the five largest agricultural producers in the world. It is time to recognize Brazil as a global giant, and to treat it as such.

The key word must be “cooperation”. Without paternalism, by mutually recognizing potentialities and weaknesses. Cooperation must have as common ground the values of freedom, democracy, the rule of law, and the uncompromising defence of human dignity and human rights. Environmental sustainability and inclusion are also essential elements for the economic development we must conquer.

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