YEAR 2023 No 2 Volume 31

ISSN 2182-9845

2023 No 2

Maria Raquel Guimarães

Ten years, “everything, everywhere and for everyone”, Chat GPT, and other reflections
Dez anos, “tudo, em todo o lugar, para todos”, Chat GPT e outras reflexões

Em Junho de 2013 surgia a primeira edição da RED. Escrevi, à época, que esta nova revista — aberta, “desmaterializada”, de livre acesso —, pretendia ser um espaço plural, multicultural, acolhendo contributos de dentro e fora do espaço europeu e promovendo o encontro de perspectivas distintas, expressas em diferentes línguas.
Podemos dizer que estes objectivos foram alcançados, volvidas 31 edições e publicados cerca de 230 artigos submetidos a dupla revisão “cega” por pares, oriundos de geografias muito diversas, para além de recensões críticas e de editoriais inspirados, da autoria de distintos editores convidados.

Personal data as counter-performance in consumer contracts — the necessity for the performance of a contract as a basis to ensure a lawful personal data processing

Rui Filipe Gordete Almeida

Personal data; counter-performance; consumer; defect; digital content; digital services.

A significant number of business models operating in the digital economy entail the provision of personal data (and not any pecuniary asset) in exchange for the provision of digital content and services. These provisions, which the average consumer perceives as being “free of charge”, have recently been recognized and framed in consumer protection law: on the one hand, in Directive 2019/770, transposed by Decree-Law no. 84/2021 of 18 October, and, on the other hand, in Directive 2019/2161, which amended, among other directives, Directive 2011/83/EU, on consumer rights, in order to ensure consistency with the scope of application of Directive 2019/770, and which led to the amendment of several laws on consumer matters, namely Law no. 24/96, of 31 July, and Decree-Law no. 24/2014, of 14 February.

The use of distributed ledger technology (DLT) in stock trading in a stock exchange environment: analysis under the light of the Brazilian legislation

Alexandre Ferreira de Assumpção Alves / Leonardo Renne Silva Teixeira

Distributed Ledger Technology; Stock Exchange; Blockchain; Stock trading; Stock post-trading.

The study aims to analyze the legal aspects related to the use of the distributed ledger technology (DLT) in the trading of shares on the stock exchange in Brazil, since this technology has the potential to increase the efficiency and economy of this trading environment. This study will start from the major premise that the use of DLT improves the trading and post-trading of shares in this environment and from the minor premise that it is possible to implement this technology on the stock exchange, despite the inexistence of laws or normative acts in Brazil that expressly provides about that possibility.

The impact of smart meters on data protection law

Diana Camões

Smart meters; energy law; general data protection regulation; directive 2019/944; personal data; energetic transaction. 

This study aims to analyze the impact of smart meters in regards to data protection law. Having in mind that goal, the investigation takes into account the main goals of energy law, which were reinforced by the Directive 2019/944 (the fourth package). Nowadays, information is power. Being smart meters an important mechanism to promote the necessary energetic transaction, as well as to give more power to consumers, we can’t ignore the dangers that might come from its use, namely in regards to data protection law. Thus, we analyze not only how may the data collected go beyond the smart meters’ goals, as well as who are, on this context, the controllers and processors.

The law applicable to pre-contractual liability in European Union Private International Law

Jéssica Marques Ferreira

European Union Private International Law; pre-contractual liability; contractual obligations; non-contractual obligations; Rome I Regulation; Rome II Regulation.

Within the European Union, the Private International Law of obligations is divided into two major instruments: the Rome I Regulation, which seeks to regulate contractual obligations, and the Rome II Regulation, which seeks to regulate non-contractual obligations. In the domestic systems of the different Member States, pre-contractual liability is difficult to qualify in terms of substantive law, a difficulty which then has repercussions on the conflict of law system, raising the problem of knowing to which conflict of law rules the substantive rules concerning pre-contractual liability are subsumed.

Notes on gross negligence in directors and officers’ liability insurance policies sold in Brazil

Mariana Cavalcanti Jardim

Insurance; Gross negligence; Directors and officers civil liability; Directors and officers’ liability insurance; D&O; Brazilian Law. 

This article aims to shed light on the thoughtless reproduction in Brazil in directors and officers’ liability insurance policies, the so-called D&O policies, of a provision aiming to exclude from coverage insured’s gross negligence. To this end, the Brazilian legal system scenario related to managers’ civil liability and their duties is detailed, focusing especially on the duties of diligence, loyalty, avoiding conflict of interest and information. The D&O insurance is examined as a mechanism capable of allocating and managing part of the risks to which managers are exposed and, only then, the managers’ gross negligence is reviewed.

Data protection and use of technology in worker monitoring: from the Portuguese experience to projections in Brazil

Célio Pereira Oliveira Neto

Data protection; remote surveillance; geolocation; monitoring; e-mail; proportionality.

Based on the evidence that Portuguese law is more structured in the face of a culture of personal data protection, including in the field of labor relations, this experience is based on an analysis, trough bibliographical research of Portuguese doctrine, legislation and jurisprudence, directives and recommendations of the Federal Union, in addition to judgments that marked important positions in the scope of the European Court of Human Rights, proposing a reflection, sometimes comparative, regarding the use of technologies, sometimes ambivalent – because they represent, at the same time, an instrument of work and control – which allow remote surveillance, geolocation and monitoring of electronic mail and their impacts on the rights to privacy and intimacy, especially with regard to the protection of the worker's personal data, analyzing the current moment of doctrine and jurisprudence, in order to draw projections and present paths regarding the use of these technologies in the light of the General Data Protection Law in Brazil in the field of labor relations.

The impact of artificial intelligence on the current producer liability regime: a regime under review by the European authorities

Isa Pinto Pereira

Consumer; Objective responsibility of the producer; Defective products; Causation; Theory of Adequate Causation; Artificial Intelligence.

The main purpose of this study is to analyse Decree-Law 383/89, of November 6, on the objective liability of the producer arising from the sale of defective products, which transposes into Portuguese law Council Directive 85/374/EEC of July 25, 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. With reference to Decreto-Lei 383/89, we will address the essential points of the system, beginning with an analysis of the concepts of producer (distinction between real and apparent producer), product, defect and damage, the system of objective producer liability, the theory of conditio sine qua non and the theory of adequate causation (seeking to highlight the insufficiencies of these traditional theories for the purposes of producer liability) and the causes of exclusion of producer liability provided for in the system.

Directive (EU) 2022/2523 related to the establishment of a global minimum level of taxation for multinational groups and its alignment with the principle of ability to pay in the Portuguese legal system

Rodrigo Alexandre Lazaro Pinto

International Taxation; Digital Economy; Globe; Contributive Ability; Fiscal crisis; Digitization.

The current fiscal crisis in the States is faced with the obligation to pay for growing expenses related to social welfare, imposing a global agenda to search for new sources of tax collection. Among the elements for its increase, there are the economic phenomena of the new economy arising from the shortening of the distance between producers and consumers of digital or partially digitized goods and services. The research in question seeks to critically analyze Directive (EU) 2022/2523 of the European Council on the establishment of a global minimum level of taxation for multinational groups, from the perspective of their approximations and distances to the Principle of Contributive Capacity.

The Public Finance Law in the Covid-19 Pandemic in Brazil

Luma Cavaleiro de Macêdo Scaff / Luiz Felipe da Fonseca Pereira / Arthur Porto Reis Guimarães

Financial law; Covid-19; Pandemic; Debt; Tax measures; Credit measures.

The Covid-19 pandemic provoked a crisis in public health and in the economy with great challenges in the face of the drop in collection and stimulus to economic activity. The objective of the present work is to study the instruments of costing rights through tax actions at the beginning of the pandemic, in 2020, carried out by the Federal Executive Branch in the Covid-19 Impact Monitoring Group created within the scope of the Ministry of Economy. Questions are asked about the measures relating to the financial activity of the State to combat the pandemic and whether financial law offers answers to the crisis. It adopts the hypothetical deductive method and primary and secondary sources through data collection and quantitative and qualitative analysis. It is divided into three parts in addition to the introduction and conclusion.

The prevalence of potestative arbitration in consumer disputes

Ana Margarida Ferreira da Silva

Consumer disputes; potestative arbitration; Essential public services; Disputes of low economic value; Hybrid mode of arbitration; Pretermination of arbitral court.  

Law no. 6/2011, of March 10, which amended Law no. 23/96, of July 26 (Essential Public Services Law) and Law no 63/2019, of August 16, which amended Law no. 24/96, July 31 (Consumer Protection Law) provides for the potestative arbitration for consumer disputes within the scope of essential public services or of low economic value, respectively. In both regimes, the consumer is allowed to resolve consumer disputes by arbitration, through a consumer arbitration centre, imposing this will on the professional. In this article, a reference is made to the importance of potestative arbitration in accessing the right by consumers followed by an analysis of the potestative arbitration regimes provided for in the Essential Public Services Law and in the Consumer Protection Law, first alone, highlighting the main aspects of the respective regimes, and then jointly, highlighting the main differences and similarities between them, as well as some procedural problems that arise around both regimes.

Book review of Moisés Barrio Andrés, Internet de las cosas, Madrid, Editorial Reus, 2022, 221 pp. (ISBN 9788429026092)

David López Jiménez

Consumers; Law; Internet of things; privacy; technology. 

Book review of Moisés Barrio Andrés, Internet de las cosas, Madrid, Editorial Reus, 2022, 221 pp. (ISBN 9788429026092)

Book Review of Espiniella Menéndez, Ángel, La relación laboral internacional, Valencia, Tirant lo Blanch, 2022, 653 pp. (ISBN: 9788411134422)

Helena Mota

European Union; Private International Law; Individual employment contracts; cross-border labour relationships.

Book Review of Espiniella Menéndez, Ángel, La relación laboral internacional, Valencia, Tirant lo Blanch, 2022, 653 pp. (ISBN: 9788411134422)