Tag: covid19

The securitization of health: on the protests against the Chinese “zero-COVID” strategy

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By Rafaela Garcia Guimarães (Master in Human Rights from the School of Law of the University of Minho)
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The approach to health as a security issue is supported by the theory of securitization developed by researchers from the Copenhagen School, according to which threats to security are socially constructed, through a speech act – whether oral, written, through images and other means of communication. Discourse acquires a fundamental role in the securitization process, as it is through the act of speech that the securitizing agent (usually an authority) exposes a demand to the public as a threat to its security – a threat that may or may not be real[1].

Health securitization occurs when a disease is presented to the public as an “existential threat”. This can happen with the onset of a disease with little scientific knowledge, no easily identifiable treatment or cure, high mortality or transmissibility, and especially when they are associated with a visceral fear of pain or suffering.

Securitization results in the adoption of exceptional measures, mainly due to their urgent nature, which may lead to containment, surveillance and coercion measures. Moreover, the policy of exception is presented to society as the only means of survival – and fear makes restrictive (and even suspensive) measures for the exercise of fundamental rights more easily accepted.

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Editorial of January 2022

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By Alessandra Silveira (Editor)
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Talking openly about the federative impact of the COVID-19 pandemic on the EU integration

Jean Monnet stated that Europe will be forged in crises and will be the sum of the solutions adopted for those crises. Crisis is the natural condition of Europe, and, as in every crisis the EU has survived in recent times – be it the sovereign debt crisis, the migration crisis, or the identity crisis with Brexit – at the beginning of the health crisis the imminent collapse of the EU was again proclaimed. And oddly enough, or not, those who were most critical of the EU’s initial silence were the same ones who traditionally postulate the least possible integration[1].

However, the existential risk at this time was also sensed by politicians and academics unsuspicious of any Euroskepticism – such as Mario Monti, Jacques Delors or Giscard d’Estaing[2] – which made that historical moment especially unique. The public opinion in the various Member States called for concerted EU action in the area of public health, in accordance with its competencies under the TFEU [both shared competencies (Article 4/2/k) and the so-called complementary competencies (Article 6/a), both set out in Article 168 under the heading “public health”], in order to fight a virus that knew no borders, endangered the health and lives of citizens, and threatened to cause an economic crisis of unimaginable proportions, foreseeably more serious than the recession crisis of the 1930s.

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Millennials and Covid-19 pandemic: an exploratory analysis

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by Felipe Debasa and José Ramón Saura (Universidad Rey Juan Carlos)
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Youths has traditionally been considered the period that precedes human maturity. However, the Baby boomer generation, the one we find after World War II, changes the term. Youth will be considered by them as the end of childhood, the culmination stage of human development. This change in point of view is the origin of the rebellious behaviors and a spirit of freedom that mark the decades of the 60s and 70s so approached by literature, music and cinema. The Baby Boomer generation in the United States and in Europe is the first generation that does not suffer a war in its own territory and that does not suffer from a shortage of food or services. Youth leisure and a consumer society focused on young people became widespread, something unthinkable at the beginning of the 20th century. As a result of this scenario, the characteristic cultural movements of an era that has marked the development of the Western world until the fall of the Berlin Wall and the disappearance of the USSR appear. Faced with this new non-war scenario, there are also youth movements protesting against their model of life. Especially against the consumer society, the rigidity of social norms and the wars in other parts of the world for which they blame Western societies. This is how countercultures were born in the 1950s and 1960s, such as beats or hippies. However, some authors[i] point out that the Maoist ideas that circulated in May 68 crossed borders and oceans and reached Latin America. There they would be the germ of many revolutionary and terrorist movements that would shake Latin America during the last third part of the 20th century.

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Editorial of December 2020

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Alessandra Silveira, Joana Covelo de Abreu and Pedro Madeira Froufe (eUjust Jean Monnet Module Members - https://eujust.direito.uminho.pt).

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Brief insights on e-Justice paradigm and the de facto digitalization of justice in the European Union – answers for the plural crisis (the endemic and the pandemic)?

e-Justice is a paradigm that has been strengthened since the adoption of the latter Council’s e-Justice Action Plan and Strategy for the period of 2019-2023, where digital platforms and technological instruments are perceived as the way to further deepen reciprocal trust in the EU administration of justice (following previous arrangements made under e-Justice Action Plan 2014-2018).

However, as the Commission points out, the “[e]xperience with the COVID-19 crisis shows the need for justice systems [to] function under challenging circumstances” since, insofar, “[e]ffective access to justice in the EU is hampered by paper exchanges and the need to be physically present” and it needs to be scalable to a new development environment as “[d]igital technologies have the potential to make justice systems more accessible and efficient”.

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Artificial intelligence: 2020 A-level grades in the UK as an example of the challenges and risks

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by Piedade Costa de Oliveira (Former official of the European Commission - Legal Service)
Disclaimer: The opinions expressed are purely personal and are the exclusive responsibility of the author. They do not reflect any position of the European Commission

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The use of algorithms for automated decision-making, commonly referred to as Artificial Intelligence (AI), is becoming a reality in many fields of activity both in the private and public sectors.

It is common ground that AI raises considerable challenges not only for the area for which it is operated in but also for society as a whole. As pointed out by the European Commission in its White Paper on AI[i], AI entails a number of potential risks, such as opaque decision-making, gender-based bias or other kinds of discrimination or intrusion on privacy.

In order to mitigate such risks, Article 22 of the GDPR confers on data subjects the right not to be subject to a decision based solely on automated processing which produces legal effects concerning them or similarly significantly affects them[ii].

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The “mandatory” contact-tracing App “StayAway COVID” – a matter of European Union Law

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by Alessandra Silveira, Joana Covelo de Abreu (Editors) and Tiago Sérgio Cabral (Managing Editor)

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1. During the previous week there as been plenty of controversy regarding a proposal by the Portuguese Government to make the installation of the App “StayAway COVID” (“App”) – a mobile contact-tracing application designed to fight the pandemic – mandatory for large sections of the population. While the Government appears to have backed down from this idea (for now) the issue of European Union Law (“EU Law”) has been surprisingly absent from most of the debate around a measure of this nature, even though it should be front and centre and precedes even the issue of constitutionality.

As we will show in this text, it is difficult to argue against the conclusion that this subject should be considered as a matter of EU Law – and, consequently, that this is a question of fundamental rights protected by the European Union (“EU”). In the EU’s legal framework, privacy and personal data protection are fundamental rights enshrined within Article 16 of the Treaty on the Functioning of the EU and Articles 7 and 8 of the Charter of Fundamental Rights of the EU (CFREU). Since it is a matter regulated at EU level, the EU’s standard of fundamental rights’ protection is applicable before and above even the national constitutional standards of protection[i]. So, this is not just a Portuguese constitutional problem that can be solved in the light of the Portuguese Constitution – it is an issue of relevance to all European citizens which needs to be resolved in the light of the EU´s (jus)fundamental standards (see Article 51 CFREU).[ii] It is important to be aware that the Court of Justice of the EU (“ECJ”), in the past, struck down constitutional provisions from Member States to ensure the adequate protection of fundamental rights of privacy and personal data protection[iii]. This is because all Member States do not have the same level of (jus)fundamental protection.

2. Under the current legal framework in the EU, enforcing the use of any contact-tracing application to the general public (or to large sections of the general public such as the entire population inserted within the labour market, academia, schools and public administration) would always face some serious challenges.

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Editorial of September 2020

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by Alessandra Silveira, Joana Abreu and Pedro M. Froufe, Editors and Jean Monnet Module eUjust Team

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The German Presidency of the Council of the European Union – the European digital path in justice fields in times of COVID-19


On the 1st July 2020, the Federal Republic of Germany has received the task of holding the Presidency of the Council of the European Union until the 31st December 2020, as this European Institution operates through a system of rotating presidency. This Member State will be closely working in a group of three – the so-called “trio” – which will also be composed by Portugal and Slovenia.  

Therefore, as the world is still struggling with the COVID-19 pandemic, it is experiencing a “time of unprecedented crisis”, which has to be strongly addressed by this presidency and has to be perceived as its transversal priority so a more resilient European Union can emerge from this challenge.

Insofar, the motto of this Germany’s presidency is “Together for Europe’s recovery” since, as Chancellor Merkel underlined, “[w]e know that we can only master this extraordinary crisis in the best possible way if we work together”, “together” has to mean the engagement of governments, parliaments and citizens all across Europe.

Under the Programme for Germany’s presidency[i], “[o]nly by containing the SARS-CoV-2 virus in the long term, investing in Europe’s economy, fully exploiting our innovative potential and strengthening social cohesion can the European Union and its Member States overcome the crisis effectively and permanently”. As crisis were always doors that led to new opportunities in the European Union, this presidency believes there is a need to “focus [the] attention on the major transformation processes of our time such as climate change, digitalisation and the changing world of work”.

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Editorial of July 2020

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator

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e-Justice in times of COVID-19 – someone pushed fast-forward?
Follow-up on the eUjust Jean Monnet Module “EU Procedure and credits’ claims: approaching electronic solutions under e-Justice paradigm”

We have already stressed the impact new information and communication technologies (ICT) are able to have on justice administration throughout Europe.

In fact, when Digital Single Market was developed, and interoperability was the method adopted, the EU established the need to pursue the paramount of e-Justice.

Insofar, as derived from the Council’s 2019-2023 Strategy on e-Justice, e-Justice paradigm “aims at improving access to justice in a pan-European context and is developing and integrating information and communication technologies into access to legal information and the working of judicial systems” since “[p]rocedures carried out in a digitised manner and electronic communication between those involved in judicial proceedings have become an essential component in the efficient functioning of the judiciary in the Member States” (paragraph 1).

In order to achieve this, the elected method was the one of interoperability, which was firstly recognised in the implementation of e-Government. However, as the time went by, it was elevated to a general principle of EU law, not only relevant on e-Government but also on e-Justice fields (see, on the matter, paragraphs 8 to 11 and 24 of the mentioned e-Justice Strategy), as it was perceived to be the less expensive and the most capable mean to put national digital solutions communicating among each other and to interconnect them to equivalent systems running before EU institutions, bodies and agencies.
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Competition and corona crisis in Spain

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 by María Pilar Canedo Arrillaga, Professor of Law, University of Deusto

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1. Spain is one of the countries that has been more seriously affected by the COVID19. In order to protect the health of citizens, the Spanish Government adopted some rules that radically limit the social and economic activity in Spain imposing the obligation to stay at home for citizens for a long period and ordering what has been called “the hibernation of the economic activity” for 15 days in all the non essential sectors (mostly health services, security and food)[i]. Those rules are having a dramatic effect in the economy especially in the labour market. This has implied the most relevant rise in the unemployment figures in Spain since the arrival of democracy in 1978[ii]. Also, they are having huge implications in the protection of legal certainty and social and personal rights of the citizens. Those consequences have a more relevant impact in the weaker actors in society both from the social and economic perspective and therefore the Government has decided to take measures with the aim of reducing the impact of the crisis in economy in general and, in particular to help those more harmed by the situation[iii].

2. It is evident that the most relevant overriding reason of general interest, which is human life, needs protection. That implies limits in the rights of the people that we could not foresee some months ago and those radical changes in social and economic behaviours will have impact in our business and industrial economy not only in the short term.

In these circumstances we can hear more radical voices claiming for a change in our economic model towards one in which the public sector controls different aspects of society, including company’s ownership[iv]. Others claim for public control of economic activity and/or business behaviour[v]. Others claim for higher protection to the companies so they can contribute to lower the destruction of employment[vi].

Also, we can witness some (infrequent) business behaviours that profit the situation of need and legal exception and maximize their benefits in abusive ways that fall under different prohibitions of the law. Some of them, with criminal implications, others, with labour, tax, social security or competition law[vii].

Dealing with the latter, there is an increasingly relevant movement that asks for a more lenient application of the competition law rules and principles in reference both with the administrative and legislative measures adopted to tackle with this situation and its application and with the enforcement activities conducted by the competition authorities.
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Pandemic and dystopia

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 by Joana Aguiar e Silva, Professor at the School of Law, UMinho

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We have been following the reflections that Giorgio Agamben has been sharing on the page of the Italian publisher Quodlibet, regarding the pandemic we are experiencing. Without really contesting the political decision that determined the quarantine regime in Italy, the philosopher of Homo Sacer is shocked by the numbness of a society that so passively accepts successive institutional measures seriously constraining its fundamental rights. Measures that openly contend with the most legitimate cultural and political traditions of the West, based on values of freedom, tolerance and the promotion of human dignity.

The statements he has made regarding the present moment of exception have sparked the most intense debate both on the part of public opinion and on several academic circles. Referring to the invention of a pandemic, he points the finger at the media, which, without due scientific basis, and with populist and demagogic interests, spreads panic in communities far too used to living in a permanent state of fear. Tracing parallels between the pandemic and terrorism, he claims we have been living with the constant fear of the other for far too long: the eternal foreigner, metaphor of an eternal threat, as a potential terrorist or, today, as a potential “infector”. (An)other, the enemy, which is now within us, invisible and silent.
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