UNIO – EU Law Journal

The Italy-Libya Memorandum: stripping away the right of asylum in the Italian legal system

Paola Di Nunzio — 2023-11-12

On the 2nd of November 2022, the Italy-Libya Memorandum on migration was renewed for the following 3 years, giving continuity to the close collaboration between the two countries to stem the flow of migrants, refugees and asylum seekers onto the Italian territory. Libya, in fact, is the main point of departure for migrants and refugees wishing to reach the Italian shores. This paper argues that, with the Memorandum, Italy adopts a ’pullbacks’ strategy which essentially translates into the practice of collective expulsion and refoulment. Nevertheless, it is in the prohibition of such practices that lies the indispensable premises to guarantee the effectiveness of the protection of the right to asylum, as safeguarded by international, European and national legislation. In fact, the Memorandum externalises the border across the Mediterranean and empties the right to asylum of its meaning, since it is structured in such a way as to make it impossible for people to reach European territory. It also denies the reality of mixed migration flows, precluding, a priori, the possibility for some migrants to be recognised as beneficiaries of international protection, while relying on the actions of a country, Libya, which has not signed the 1951 Geneva Convention on the Status of Refugees, has no functioning national asylum system and cannot be considered a ‘Place of Safety’ due to proven human rights violations perpetrated in its migrant detention centres. This paper further argues that the Italy Libya Memorandum is in line with the securitarian migration policies and the strategy of borders’ externalisation by the European Union (EU), which entrenches itself in a fortress on whose borders violence is carried out. In this context, bilateral agreements such as the Memorandum risk creating legal black holes whose purpose seems to be to circumvent the responsibilities stipulated at different levels of legislation. The jurisprudence of the Italian legislative system and of the European Court of Human Rights (ECtHR) seems to be paving the way for a more conscious approach to migrants and might fill in the void created by the solidarity crisis of the European approach to immigration, but not without the support of a policy approach focused on restoring the Italian constitutional structure of the right to asylum.

The freedom to conduct a business as a driver for AI governance

Inês Neves — 2023-11-30

Artificial Intelligence (‘AI’) is associated with several risks that need to be contained and mitigated through an appropriate AI governance framework. However, it is also crucial to take into account the opportunities and societal benefits of AI and to consider and respect businesses as key actors in the context of AI. The freedom to conduct a business is a fundamental right enshrined in Article 16 of the Charter of Fundamental Rights of the European Union. It cannot be considered a diminished or functionalised right, nor are companies necessarily a threat to human rights or an obstacle to the pursuit of human-centred governance of AI. As in any scenario of conflict or collision between fundamental rights and interests, a fair balance must be struck between the subjective positions of different stakeholders. Ensuring respect for the freedom to conduct a business safeguards innovation and the flourishing of new opportunities that ultimately benefit citizens and the public interest. In the European Union legal system, AI governance will be shaped by both the ‘Artificial Intelligence Act’ and novel rules to address liability issues related to AI systems. While its prima facie content is affected by several provisions and obligations, in particular, for providers of high-risk AI systems, the EU legislator does not neglect the freedom to conduct a business. It seeks to provide legal certainty, ensure proportionality and address the special condition of small and medium-sized enterprises and start-ups. However, the rigidity of some provisions and the approach to risk, together with the uncertainty that characterises the normative environment of the AI, leave room for improvement and for further escape valves, with the future application being of particular importance.

European data market: the rise of individuals to the “Mount Olympus” of artificial intelligence or the “oiling” of the human being?

Iolanda A. S. Rodrigues de Brito — 2023-12-12

This article aims to contribute to the debate on the long-term consequences arising from the creation of a European data market, considering the limitless potential of artificial intelligence (AI). Encouraging mass data production to develop AI could compromise the effective protection of personal data, the preservation of European liberal democracies and human rights, the promotion of innovation and even European economic prosperity. Bearing in mind the EU’s “spiritual and moral heritage”, enshrined in the Preamble of the Charter of Fundamental Rights of the European Union (CFREU), it is essential to ensure that we are truly walking along a path that will lead us to a democratic future.

“I participate. You participate. He participates. We participate. You participate. Do they profit?” Brief reflections on the forms of citizen participation according to the Directive (EU) 2019/944 on the Internal Market of Electricity and the Directive (EU) 2018/2001 on Renewable Energy Sources

Cecília Bojarski Pires — 2023-12-13

This article aims to identify the primary forms of citizen participation within the European energy regulatory framework, focusing on decentralised energy production and its intersection with the right to the city and environmental, climate, and energy-related concerns. The article is structured in two sections. The first section addresses the rise of the right to the city, tracing its emergence as a category within urban sociology until its legal recognition as a human right, which guarantees the fruition of urban rights and the promotion of democratic participation in the construction of the urban model. It also analyses the urban phenomenon as a result of the expansion of the urban fabric and a way of life supported by a model of entrepreneurship and commodification of cities. In the second section, there is a brief contextualisation of the development of European energy policy, and it identifies the forms of citizen participation outlined in the Directive (EU) 2019/944 on the Internal Electricity Market, and the Directive (EU) 2018/2001 on Renewable Energy Sources, especially the Citizen Energy Communities (CEC) and Renewable Energy Communities (REC). Finally, the article highlights some risks that should be considered to ensure that market interests do not co-opt mechanisms of citizen participation in the energy sector to the detriment of promoting the right to the city.

The circular economy strategy as a way of designing more durable, repairable, and reusable products

Beltrán Puentes Cociña — 2023-12-19

The European Union’s strategy for the circular economy seeks to change the current linear model of production and consumption, which involves the misuse of many resources and the production of huge amounts of waste. To this purpose, it is necessary to amend legislation on the ecodesign of products and introduce durability, repairability and reusability criteria. This article analyses the origins and evolution of ecodesign legislation, as well as the challenges that the circular economy poses to this legislation, pointing out the main limits and regulatory changes that should be considered.

European cybercultures: between the mix and idiosyncrasy. The role of interconstitutionality

Ana Melro — 2023-12-19

The process in which constitutions mutually influence and reflect each other and what the European Union project is in between has become increasingly evident. It is therefore important to understand how this happens and what consequences it has. This process is reflected in national cultures, both in legislation and in the political and social strategies defined at various levels, such as mobility, sustainability, consumption of goods and services, among many others. With the development and social implementation of Information and Communication Technologies, cyberculture has come to stand alongside and to accompany culture. This means new rules, regulations, behaviours, attitudes, lifestyles and traditions. Cyberspace is a privileged environment for the creation, consumption and sharing of cyberculture, a space of collective intelligence. The dialectic of interconstitutionality contributes to enhancing the different European cybercultures, which do not cancel each other out. On the contrary, they elevate each other.

The influence of European Union personal data protection standards in Latin America from the perspective of social actors and Latin American authorities

Alexandre Veronese — 2023-12-20

This article seeks to delve into the perspectives of social actors across several Latin American nations regarding the impact of the European Union’s (EU) personal data protection standards on their respective legal and administrative systems. The analysis is structured into three distinct sections, each contributing to a comprehensive understanding of this influence, culminating in a concise conclusion. The initial segment scrutinises excerpts from field interviews, shedding light on the influence of the EU and its legal provisions in shaping the national legal frameworks of researched countries, including Argentina, Brazil, Colombia, Chile, Costa Rica, Mexico, Panama, Peru, and Uruguay. The second part shifts the focus to a post General Data Protection Regulation (GDPR) era, exploring the heightened awareness surrounding adequacy processes crucial for securing favourable decisions from the European Commission for international data transfers. Concluding the analysis, the third part examines selected excerpts from interviews about the relationship between the abovementioned countries and the Council of Europe’s Convention 108+ and the Budapest Convention. Notably, these conventions serve as additional benchmarks in the data protection landscape. In summary, findings from the field research underscore that the influence of EU law significantly outweighs that derived from standards outlined in Council of Europe treaties. Additionally, interviews reveal a palpable recognition of the imperative to draw insights from diverse global regulatory examples, hinting at the potential for a unified global regulation.

Editorial

Editorial Team — 2023-12-29