The future regulation on non-contractual civil liability for AI systems

By Susana Navas Navarro (Professor at the Universidad Autónoma de Barcelona)

I was surprised and struck by the fact that, after all the work carried out within the European Union (“EU”), on the subject of civil liability for Artificial Intelligence (“AI”) Systems, the European Commission has opted for a Directive (the Proposal for a Directive on adapting non contractual civil liability rules to artificial intelligence or “Proposal for a Directive”) as the instrument to regulate this issue. Moreover, a Directive with a content focused exclusively on two issues: a) the disclosure of relevant information for evidence purposes or to decide whether or not to bring forth a lawsuit and against whom (Article 3) and b) the presumption of the causal link between the defendant’s fault and the result or absence thereof that an AI system should produce (Article 4). The argument for this is the disparity of civil liability regimes in Europe and the difficulties there have always existed in harmonization (see the Explanatory Memorandum accompanying the Proposal, p. 7). Choosing a Regulation as proposed by the European Parliament[1] or the proposals of the White Paper on AI would have allowed such harmonisation, and could have included rules on evidence. It seems to me that behind this decision lies the invisible struggle, previously evidenced in other issues, between the Commission and the European Parliament. I believe that the risks for all involved in the use and handling of AI systems, especially high-risk ones, are compelling reasons in favour of harmonization and strict liability.

In relation to this aspect, the Proposal for a Directive abandons the risk-based approach that had been prevailing in this area, since it assumes that the civil liability regimes in most of the Member States are based on fault. This is referred to, for example, in Article 3(5) when presuming the breach of duty of care by the defendant or directly in Article 2(5) when defining the action for damages, or Article 4(1) when admitting the presumption of the causal link between it and the result produced by the IA system or by the absence or failure in the production of such a result which causes the damage. Therefore, if in the national civil liability regime, the case was subsumed under a strict liability regime (e.g., equated to the use or operation of a machine or vicarious liability of the employer), these rules would not apply. National procedural systems, in relation to access to evidence, are not so far r from the provisions of this future Directive.

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What is “Reality”? An overview to the potential legal implications of Extended Reality technologies

By Manuel Protásio (PhD Candidate at the School of Law of the University of Minho)

When Virtual Reality and Augmented Reality become ubiquitous in our most mundane actions and inter-personal relations, they will certainly bring many changes in how Law addresses human behavior.

The need for a coherent discussion regarding the potential cognitive effects of these technologies and, subsequently, the legal consequences that may be triggered by their effects is highly relevant and necessary to avoid possible misconceptions in courts and legal systems.

The use of these technologies may result in alterations of our cognitive functions, significant enough to be considered a type of an altered state of consciousness, amenable to different legal consequences. On that premise, it is important to realize that these technologies can have both positive[1] and negative effects. [2] 

These technologies are built and defined with reference to the concept of reality. Such terminology is used to contrast actual reality.  Reality, as it is defined by the Oxford Dictionary, is “the state of things as they actually exist, as opposed to an idealistic or notional idea of them”.[3] This reality, or the “the thing in itself” as Kant proposed, in the information age and especially in the light of technologies like Augmented and Virtual Reality, has become harder to ascertain, since the human model of perception[4] is being exposed to more filter layers than it is used to.[5]

The ontological dimension of reality has always shifted depending on the criteria and discourse used to define it. John Locke for instance, in his Essay on Human Understanding in 1690, describes reality as the knowledge that we convey on the objects that surround us. That knowledge – he states – comes from our observational Experience, which in turn comes from the external interaction of our senses with “sensible objects” followed by the internal operations of our mind.[6] He describes these internal operations as being a cognitive reflective process on the perceived objects, which can be interpreted as employing meaning – or affections as he says- to those “sensible objects”. From this systematic process, sensible qualities are born, such as “Yellow, White, Heat, Cold, Soft, Hard, Bitter, Sweet”.   

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Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)]. 
 

1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

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The EU Circular Economy Strategy: a strong step towards more ecological products design and manufacturing?

Beltrán Puentes Cociña (PhD Candidate at the University of Santiago de Compostela) 

Humanity has been engaged in the struggle for sustainability for at least 30 years. Since the Rio de Janeiro Earth Summit in 1992, there have been many political, economic, and social initiatives for a sustainable development that makes human activities compatible with the ecological limits of the planet. One of the latest and most relevant is the circular economy strategy[i]/[ii].

1. The first EU Action Plan for the Circular Economy (2015)[iii]

The current model of production and consumption follows a linear sequence. It is based on the extraction of natural resources, the mass manufacture of products, the over-consumption of short-lived products and the generation of a huge amount of waste that is either incinerated or landfilled. Growth policies encourage the demand for more and more products, so that a country’s economy grows when its consumption and production increase.[iv]

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Editorial of November 2021

By Rafael Leite Pinto (Master in EU Law – University of Minho)

The regional impacts of climate change in the European Union – a cohesion perspective

Although concern about climate change is typically a higher priority in western countries, especially in Europe, the understanding of its regional impacts is not widespread. The prevailing line of thinking is that developing countries will be the most affected and Europe will experience minor changes. While it is clear that developing countries will be affected the most, the lack of knowledge about local impacts can lead many citizens and politicians to delay taking concrete action. In this article, based on the new IPCC report and the new visual tools provided, we summarize the impacts of climate change in Europe, on rising temperatures, sea level, precipitation, and the incidence of extreme events with an overarching view on the internal cohesion policy for climate change to guarantee a fair and just transition, within the European Union.

1. The IPCC report

The new report by the Intergovernmental Panel on Climate Change (IPCC)[1] made headlines as being the most frightening and alarming ever. In fact, nothing should concern us more than a report based on more than 14,000 high-quality studies, which clearly states that “each of the last four decades has been successively warmer[2]” and that human action is to blame.

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On the reform of sexual offences in Spain

Julia Ropero Carrasco and Sandra López de Zubiría Díaz (Universidad Rey Juan Carlos, Madrid)

The regulation of so-called “sexual crimes” has traditionally been accompanied by significant and heated debates. If we refer to its historical regulation, it is possible to see how “honour” or “morality” have clouded adequate protection of the victim, essentially due to the mistaken identification of the harmfulness of these acts. From 1995 onwards, with the so-called “Penal Code of Democracy”, it seemed that the regulation had been translated into important improvements, especially by consolidating “sexual freedom” as the legal right to be defended, instead of the previous obsolete conceptions. However, despite the commendable effort to abandon the conventional “sexual morality”, the truth is that this reform brought with it a lack of protection for victims, especially in the area of minors and trafficking for the purpose of sexual exploitation, which led to different revisions accompanied in turn by controversy over the timeliness of the reforms.

For this reason, the controversies surrounding the regulation (and its application) of sexual offences have not ceased to be present, although it is in the wake of the well-known case of “La Manada[1]” and the various sentences issued on the matter that Spanish society has been particularly rallied and, with it, the debate on the appropriateness of criminal reform in this area has been reignited.

As a current context, it is necessary to pay attention to the data extracted from the 2019[2] Macro-survey on violence against women, as well as from the Report on Social Perception of Sexual Violence[3], which shows the prominence of sexual violence in women’s lives, the problem of under-reporting of the facts and, more worryingly, the maintenance of stereotypes about sexual violence (especially with regard to the conception of the “rapist” as a sick person and not as one of the perverse derivations of a patriarchal order that maintains a strong discrimination against women in the sexual sphere and a definition of roles that promotes male domination).

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Editorial of October 2021

By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)

Strange times and the need to remember the obvious…on the recent decision of the Polish Constitutional Court

The recent judgment of the Polish Constitutional Court calls into question one of the base pillars of the European legal order – namely the primacy of EU law over national law. As a result, it is likely that the European Commission will bring infringement proceedings against Poland. If the CJEU finds that Poland has not complied with its judgment, it may impose a financial penalty.

However, there is a possibility for de-escalation which would allow for this imbroglio to be first be resolved politically. This was the case regarding the German Constitutional Court’s astonishing decision of 5 May 2020, concerning the ECB’s bond buying programme for purchasing Member States’ public debt on the secondary market. The crux of the matter was that the German Constitutional Court’s judgment followed a judgment by CJEU which settled the issue of the validity of the ECB’s bond buying programme. The German Constitutional Court in its decision disregarded the decision of the competent court under Article 19(1) TEU, according to which the CJEU ensures that the law is observed in the interpretation and application of EU treaties. It did not take long for the so-called “illiberal democracies” in Europe to welcome the ruling of the German Constitutional Court, using it to subvert judicial independence and freedom of expression as recognised by the EU. Fortunately, the good sense of the German governmental and parliamentary authorities under Angela Merkel’s leadership prevailed – and the European institutions did not have to act accordingly (at least immediately). It is important to note that in a second decision regarding the ECB’s bond buying programme also appeared to walk back from the edge of the cliff.

In any case, such episodes recommend revisiting the elementary notions of European integration law, because there are occasions when certain civilisational achievements still need to be defended, and the reason behind some choices needs to be recalled. What functional reason justifies the primacy of Union law over national law? Does Union law take precedence over national constitutional norms (or, on the contrary, can it be declared unconstitutional or set aside on the grounds of alleged unconstitutionality)?

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What to expect from the European Platform on Combating Homelessness?

Cecília Pires (PhD Candidate at the University of Minho)

On 21 June of 2021, under the fourth Portuguese Presidency of the Council of the European Union (“EU”), its Member States, European institutions, political representatives, homeless people, and civil society signed the Lisbon Declaration on the European Platform on Combating Homelessness, during the High-Level Conference on the European Platform on Combating Homelessness.

The initiative is a result of the orientation at Article 3 of the European Pillar of Social Rights Action Plan, which predicts the urgency of European practices and policies that can promote access to not only the quality and affordable houses but also the essential services. It is aimed to guarantee the human right to adequate housing.

The primary basis of the commitment is: Article 3 of the Treaty on European Union (“TEU”), which mandates the Union to combat social exclusion and promote economic, social, and territorial cohesion; principle nº 19 of the European Pillar of Social Rights (“EPSR”), that addresses the need for action to ensure housing; housing assistance, adequate shelter and services for those in need and people experiencing homelessness; and the principles nº 1 and nº 11 of the 2030 United Nations (“UN”) Sustainable Development Goals (SDGs), which deal, respectively, with the duty to end extreme poverty, including homelessness, and to make cities and human settlements safe, resilient and sustainable with ensuring access to all adequate, safe and affordable houses. 

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Editorial of September 2021

By Tiago Sérgio Cabral (Managing Editor)

On the recent Polish challenges to the primacy of EU Law

1. Some recent progress

On 14 July 2021 the Court of Justice of the European Union (hereinafter, “ECJ”) issued an Interim Order declaring that the Polish State should suspend the activity of the, widely regarded as breaching the principle of the independence of the judiciary, Disciplinary Chamber of the (Polish) Supreme Court. The ECJ’s decision came as no surprise both due to the nature of the Chamber itself and the fact the same Court had already issued a similar order a few months before. One day after, on 15 July 2021, the ECJ would issue a judgment confirming that the Chamber was in breach of Article 19(1) TEU and Article 267 TFEU.

What could be seen as a surprise is the fact that the Polish Constitutional Tribunal, whose level independence could hardly be called adequate after the reforms by the current ruling party, directly challenged (deciding on the previous order) the ECJ. The Polish Constitutional Tribunal argued that the interim measures ordered by the ECJ should be considered as incompatible with the Polish Constitution and therefore not enforced.

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The Hungary question: how are the rights of LGBTIQ people in the EU?

by Ana Cardoso (Master’s student in European Union Law at the School of Law of the University of Minho)

On 23 June 2021, the Hungarian President Jánus Áder promulgated a law which forbids schools and the media of “promoting or portraying” homosexuality or sex reassignment to minors and limits sexual education in schools. The abovementioned law was approved by the Hungarian Parliament on 15 June 2021 and initially started as a way of introducing heavier sanctions on sexual crimes against minors, boosted by the scandal that happened earlier in the year involving the Hungarian ambassador to Peru, Gábor Kaleta, who was found in possession of nearly 20,000 pornographic pictures of minors. However, on 9 June 2021 MPs from the ruling party, Fidesz, submitted last-minute amendments to the law which target sexual minorities, in practice linking homosexuality to paedophilia.

The law (including the last-minute amendments) forbids that any content featuring portrayals of homosexuality or sex reassignment be made available to minors, states that school sex educators can no longer “promote” homosexuality or sex reassignment and that sexual education classes can only be held by registered organisations, limiting more liberal NGOs, and finally puts restrictions upon ads with LGBTIQ content. President Áder maintains that this new law only aims to protect children and give their parents the rule over sexual education, and that it does not affect the right of adults to choose how they live their own lives, or the right to private life enshrined in the Hungarian Constitution. Furthermore, Prime Minister Viktor Órban has stated that the law passed and that it was final, showing no intention of backing down.

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