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

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

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

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

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


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


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

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


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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Thinking about the post-COVID-19 world is putting the European Green Deal into practice: this is the time for the European Union to respond in line with “green”

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 by Nataly Machado, Master's student in EU Law, UMinho

There are several reports of reductions in pollutant emissions caused by the global shutdown due to the pandemic. Images taken via satellites and drones show us the record of abrupt drops in air and water pollution levels[i].

Unfortunately, there are also news about increased deforestation in areas such as the Amazon and the Pantanal[ii], concomitant with the new coronavirus crisis. In addition to what happens during the pandemic, the concern exists for the forthcoming post-crisis, which may show a sharp increase in the level of pollutant emissions due to the economic recovery, as occurred in other post-crises, such as the Spanish flu in 1918, the Great Depression in 1929 and the financial crisis in 2008[iii].

It is a reality that the new coronavirus has changed and will change, drastically, the people’s and public authorities’ priorities. Life must be protected. Until a vaccine is developed, public health control measures combined with strict social and economic measures will be implemented to handle the consequences that have already affected many countries around the globe.
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World Health Organization Guidelines, COVID-19 Pandemic and Transnational Law

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 by Carla Piffer, Professor of Law, UNIVALI (Brazil)
 and Paulo Márcio Cruz, Coordinator and Professor of Law, UNIVALI (Brazil)

The novel coronavirus disease (COVID-19) has rapidly spread worldwide. It gained a pandemic status, and is currently affecting, without distinction, the most (and the least) important world powers. We are facing a global public health crisis with unprecedented economic effects. Actually, we fear something that, in fact, cannot be seen.

Since infectious diseases began to have endemic, epidemic, or pandemic characteristics, the bases for combating them started to have fundamentally transnational characteristics from the second half of Modernity. Especially from the beginning of the 20th century, at a time when many cases of infectious diseases began to be registered in the control systems of official health agencies, these facts started to gain visibility through the media, which began to report on the existence of endemics, epidemics, and the consequent risk of pandemics.
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Gender (in)equality in time of COVID-19

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 by Helena Ferraz, Master's student in Human Rights, UMinho


“The Captain looked at Fermina Daza and saw on her eyelashes the first glimmer of wintry frost. Then he looked at Florentino Ariza, his invincible power, his intrepid love, and he was overwhelmed by the belated suspicion that it is life, more than death, that has no limits.”
Gabriel García Márquez[i]


Humanity sails in rough seas. It is possible to see from a distance the yellow flags. “Plague’s on board!” – leaders from all around the world announce. The sign of death and illness, unlike what Florentino Ariza did, is not just an artifice to take pleasure of Fermina Daza’s love without any kind of discomfort. This year’s rough reality makes humanity mourn the loss of another two hundred thousand lives – and, unfortunately, it is still not possible to see the redeeming light at the dark sea-line of uncertainties.

The coronavirus, an invisible and common enemy, understands us as what we unquestionably are: human beings. We share the same vessel – the planet Earth – but it is possible to take notice that the trail of destruction does not hit everyone in the same way. In exceptional times like the ones we live in, we are indeed faced with indigestible underground realities, left in the zone of the unsaid, of what is normal, natural, as if they are given realities, whose symbolic representation is culturally reproduced.

In this article, we will focus our analysis on the impacts of the pandemic in relation to the gender inequalities, specifically in relation to the sexual division of labor, and its consequences in the personal, family and professional life of women, with reference to the European Union legal framework on gender equality.
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The Household Mask – The Fundamental Right to the Access to Justice and to Online Court Sessions in times of COVID-19

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 by Marcílio Franca, Professor at Federal University of Paraíba (Brazil)
 and Inês Virgínia Prado Soares, Federal Judge (Brazil)

The application of contention measures and social isolation due to COVID-19 has caused a great impact on the operation of the whole justice system – in courtrooms, law firms etc. in the world and in Brazil alike. Brazil’s National Council of Justice (Conselho Nacional de Justiça – CNJ) has been working from home since March 12 as a way to administer justice during the most critical period of the pandemic. On March 26, The National Council of the Prosecution Office (Conselho Nacional do Ministério Público – CNMP) determined the uniformization of the measures to prevent Coronavirus at all branches of the Prosecution Office in Brazil, making remote work and conference calls mandatory.

In turn, Brazil’s highest Court, the Supreme Federal Court (Supremo Tribunal Federal – STF) published Resolution 672/2020 on March 27 to allow the use of conference calls on its trial sessions. Such document, as those issued by CNJ and CNMP, does not detail the formalities to be respected, which intuitively leads us to believe things must be done as they always have been, including themes such as language and the attire.
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