YEAR 2024 No 2 Volume 34

ISSN 2182-9845

2024 No 2 Volume 34

Carmen Muñoz García

The European AI Act. Regulatory framework for a safe and reliable AI
El Reglamento de Inteligencia Artificial en Europa. Marco regulatorio para una IA segura y fiable

El Reglamento Europeo de Inteligencia Artificial (RIA o AI Act, por sus siglas en inglés) es el primer hito regulatorio de esta tecnología a nivel mundial. Aunque los primeros pasos para la regulación de la inteligencia artificial (IA) se iniciaron en el año 2018, fue el compromiso político de la Presidenta Von der Leyen de presentar propuestas legislativas para la Comisión 2019-2024, el que daría sus frutos. Entonces anunció que era preciso un enfoque coordinado en materia de IA para abordar los riesgos éticos y humanos. Su desarrollo y uso debía impulsarse pero sin perder de vista la protección de las personas.

In memory of Erik Jayme — Report of the Meeting of the Luso-German Association of Jurists 2023 (Heidelberg) Family and tort law

Ann-Cathrin Maier

A Reunião Anual da Associação Luso-Alemã de Juristas, realizada nos dias 15 e 16 de setembro de 2023 em Heidelberg, teve como tema "Família e responsabilidade civil delitual". A estrutura para o evento, no entanto, foi fornecida pelo trabalho e pela personalidade da pessoa cuja tese de habilitação sobre esse mesmo tópico foi publicada em 1971: Prof. Dr. Dr. h. c. mult. Erik Jayme LL.M. (Berkeley). É impossível apresentar e explicar a Associação Luso-Alemã de Juristas, o seu trabalho e os seus encontros anuais sem apresentar brevemente seu presidente honorário.

Critical Analysis of the Right of Publicity: A Comparative Study

Bzhar Abdullah Ahmed

Publicity Right; Postmortem Right; Right to Privacy; Appropriation, Unauthorised Use.

This article critically analyses the right of publicity under the laws of the United States (specifically California and New York), Iraq, the United Kingdom and the European Convention on Human Rights (ECHR) convention. The right of publicity is defined as a right designed to preclude the unauthorised utilisation of an individual's identity, typically involving appropriation of an individual’s likeness, name, voice, or image. This right was recognised to address the gaps and shortcomings of the right to privacy. This article analysed the legal frameworks of various jurisdictions, including the US states of New York and California, Iraq, the UK, and the ECHR. It was found that the right of publicity is conferred upon individuals by statutes in New York without reliance on common law.

Right of withdrawal and lack of information relative to the price

Lídia Arnau Raventós

Right of withdrawal; Price; information requirements; binding effect; contractual integration.

The comment that follows is inspired by Judgement of the CEU 5.10.2023 Sofatutor, relating to a service contract concluded electronically. The CJUE resolves that if, when contracting, the consumer is not informed that, after a first period of free provision of services, the contract becomes onerous, without also informing the price, then it is appropriate to recognize him a second right of withdrawal of the onerous contract. The study analyzes how lack of information ends up affecting the discipline of the right of withdrawal. An special attention is devoted to the precontractual and pericontractual duty to inform, specifically about the price, in order to determinate how it affects the effective conclusion of the contract (art. 6.1,e and 8.2.I DDC).

Data Protection and International Arbitration: How to make these two different worlds coexist in the digital era

Diana Camões

Data protection; general data protection regulation; arbitration; international arbitration; personal data; technology. 

This study aims to reflect on the importance of data protection law, namely the General Data Protection Regulation (GDPR), when it comes to International Arbitration, which is something that implies the need to articulate different laws and international treaties. For this reason, we address the different issues regarding the material and territorial scope of the regulation, as well as the question of transfers of personal data to third countries. We also analyze which personal data can be processed during an international arbitration. Finally, our investigation takes into consideration some of the main issues regarding the proceeding of arbitration itself and evaluates whether the GDPR can offer, when applicable, a coherent answer to the data protection’s issues emerging in international arbitration.

“Pay or ok”. Paying with personal data under Directive 2019/770: A comparative view between Spain and Portugal

José Antonio Castillo Parrilla / Jorge Morais Carvalho

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

Based on the ideas of consideration, price and counter-performance in the general theory of obligations and contracts, this text analyses the issue of payment with personal data in consumer contracts under Spanish and Portuguese law. Despite the fear of the lawmakers in using the word “consideration” in this context, we argue that we are dealing with payment with personal data whenever three conditions are met.

On the constitutional compliance of the 2023 reform of the Portuguese Labour Code: critical analysis of the paper “Constituição e Agenda do Trabalho Digno” by Romano Martinez and Gonçalves da Silva

Gonçalo Sá Gomes

Unconstitutional; Dignified Work Agenda; prohibition of outsourcing; non-renounceable labour credits; union activity in the company; arbitration for the motivation of termination of collective agreements.

This paper aims to resolve some key questions of constitutional compliance of the reform of 2023 (the Dignified Work Agenda) of the Portuguese Labour Code. We will analyse the paper by Professors Romano Martinez and Gonçalves da Silva and attempt to contribute to the analysis of some of the most controversial measures of the reform – the prohibition of outsourcing (art. 338.º-A), non-renounceable labour credits (art. 337.º, n.º 3), union activity in the company (art. 460.º, n.º 2) and the arbitration for the motivation of termination of collective agreements (art. 500.º-A).

The defeat of the definition of “edification” in the LRUE (Legal Regime of Urbanization and Edification)

Paulo Jorge Gomes

Legal definition; edification; Legal Regime of Urbanization and Edification; norm; interpretation.

The legal definition of “edificação” (edification) provided in the Portuguese law related to urbanism and edification is legally unclear as to whether structures not embedded into the ground are subject to urban planning control and the corresponding sanctioning regime. The amendments made by the law Decreto-Lei n.º 10/2024, January 8, did not clarify the doubts. We put forth analytical arguments to the effect that some of such structures may be considered edifications not because of, but despite the legal definition. However, we argue that the sanctioning regime is inapplicable to atypical edifications, because the legal type is not fulfilled and due to the prohibition of the analogy related to sanctioning norms.

Data protection by design and default as a preventive legal obligation of home automation

Idoia Landa Reza

Home automation; data protection; certificate; data subject. 

Although the control of light, water, heating or blinds seems like part of a science fiction movie, it is already a reality. Therefore, the law must respond to the legal risks posed by the use of this technology. Not only to technical and security problems for the property or the user, but also those related to the fundamental right data protection of the data subject. The action of collecting and storing data automatically in a home has its risks; if a device does not have a sufficient security measure, there may be a security breach, which can lead to loss of control of personal data.

Material scope of choice of court agreements that are part of preliminary contracts concluded in the run-up to the future conclusion of other contract(s): do they bind the parties in future disputes arising from contracts they intend to conclude in the future?

João Paulo Remédio Marques

Prorrogation of jurisdiction; choice of court agreements; material scope of choice of court agreements; particular relationship; preliminary contracts; sales distribution contracts; international jurisdiction: Brusels I-A Regulation.

The formal and substantive validity of choice of court agreements, especially in the European Union, is subject to specific requirements. This study attempts to establish the material limits of these choice of court agreements and the particular legal relationship covered by them, mainly in situations where the choice of court agreement is part of a preliminary contract concluded in the run-up to the future conclusion of other contract(s) between the same parties, in particular commercial distribution contracts. Furthermore, if such choice of court agreements do not cover disputes arising from such future contractual relationship or are void for other reasons, we intend to assert direct international jurisdiction within the framework of the Brussels I-A Regulation.

Does Amazon use someone else's trademark to market products?

Sara Carolina Rodríguez Ramírez

Use in the context of its own commercial communication; ISSP liability; Primary or direct trademark liability; Trademark infringement; Secondary liability; Amazon v. Christian Louboutin.

In the case involving the interpretation of the requirement of “use in the context of its own commercial communication”, the CJUE ruled that an e-commerce platform with the characteristics of Amazon may use the sign in this manner when third-party sellers use it use in products they market on its website. This comment analyses the judgment and presents the author´s position.

Hybrid asymmetries and their impact on tax base erosion

Filipa Margarida Dias Santa / José de Campos Amorim

Hybrid asymmetries; OECD; BEPS; Abusive tax planning; Tax evasion; Tax avoidance.

Hybrid asymmetries, resulting from the different classification of financial instruments, entities and payments made by different jurisdictions, have been used by large companies in tax planning schemes to achieve situations of double non-taxation, double deductions and deductions without the inclusion of the respective income, which will have resulted in the erosion of the tax base and the transfer of profits to more tax-favorable countries. As a result of these asymmetries, the OECD and the European Union have implemented a number of measures to neutralize them, set out in Action 2 of the BEPS Action Plan, concerning hybrid asymmetries and their effects, and in the Anti-Tax Avoidance Directives, which have been transposed into the IRC Code.

Analysis of the Resolution of the European Parliament, from October 20th 2020, and the Proposal for a Directive Of The European Parliament and of the Council on adapting non-contractual civil liability rules to artificial intelligence (AI Liability Directive)

André Gonçalo da Costa Fraga Bastos Torres

Civil Liability; Artificial Intelligence; Resolution of the European Parliament, from October 20th 2020; Proposal for an AI Liability Directive; Requisites of Non-Contractual Civil Liability; Socialization of Risk.

This study comprises of an analysis of Resolution of the European Parliament, from October 20th 2020, and the Proposal for a Directive of the European Parliament and of the Council on adapting non-contractual civil liability rules to artificial intelligence (AI Liability Directive). Both represente the effort initiated by the european legislator to adapt the requisites and the probative burden tipically associated with non-contractual civil liability actions to the new reality of artificial intelligence.