Category: 1.1 News from the Area of Freedom, Security and Justice

The European Parliament has just adopted on Thursday 16 February  by 396 votes in favor, 123 against and 85 abstentions a legislative initiative in compliance with the art. 225 of the TFEU. It deals with Robotics and has been adopted  following a report of  Mady Delvaux (S&D, Luxembourg) on behalf of the Legal Affairs Committee (JURI).

This report follows an important study on the ‘Ethical aspects of cyber-physical systems‘, recently conducted for the European Parliament’s STOA (Science and Technology Options Assessment) Panel. (see the animated infographic highlighting the range of concerns that require legal and ethical reflection, by linking different entry points – areas, concerns, and committees-  with each other).

The text adopted by the plenary is still very ambitious but some important suggestions of the JURI committee did’nt found the required majority in plenary. The most innovative ones would had been the introduction of basic universal income and of a tax on work done by robots as measures which can partially compensate the loss of working opportunities for “humans”.  The proposal to be able to put together collective redress against a robotic company was not retained either.

All that having been said the main point is: will it be followed by a formal Commission proposal and become a legal reality?

By reading the position taken by the Commission representatives during the debates (see below) it does not look like. Let’s hope that this time the Commission will not take the same position it took for the EP legislative proposal to establish an European Code of Good administration when it declared that it was …too early. Not being followed by the Commission should be extremely frustrating for an institution which is the only one directly elected by the EU Citizens  and which should in principle know what has to done but unlike the national parliaments is still lacking a true power of legislative initiative …

Quite rightly such power has been envisaged  this week by another Parliamentary report (Verofhstadt) on the possible changes to the current Treaties (Proposes, moreover, that in line with the common practice in a number of Member States, both chambers of the EU legislature, the Council and, in particular, the Parliament, as the only institution directly elected by citizens, should be given the right of legislative initiative, without prejudice to the basic legislative prerogative of the Commission; ).

Wishful thinking ?  Quite probably but “Spes Ultima Dea) ….

EDC

” EP DEBATES : …Carlos Moedas, Member of the Commission. – Mr President, on behalf of my colleague Věra Jourová let me start by thanking the rapporteur, Ms Delvaux, and all the MEPs involved. This is a crucial report on all the legal questions related to development of robotics and artificial intelligence. This House, to my knowledge, will be one of the first to have a clear and comprehensive position on robotics and artificial intelligence, a topic that is getting great public attention, and rightly so. Your text highlights the challenges and opportunities of this sector, and points towards a clear need for a coherent European approach. You are also calling for Europe to have a strong presence and investment in its technology in order to maintain leadership. In the European Commission, we have long recognised the importance and the potential of robotics and artificial intelligence, and the need for significant investment in these areas. We have set an ambitious public and private partnership for robotics in Europe: Sparc. This partnership not only brings the academic and research institutions, industry and business together, but also looks into questions related to ethics and law. Sparc is by far the biggest civilian research programme in this area in the world, with EUR 700 million from EU funding from Horizon 2020 to be leveraged up to EUR 2.8 billion by private investment…..()… Let me now comment in particular on your request for the Commission to come forward with a legislative proposal on civil liability for damage caused by robots. First, as you know, we already have EU legislation applying to robots. The Machinery Directive, the General Product Safety Directive, the proposed legislation on medical devices, and the regulation on common rules in the field of civil aviation currently under revision also includes concrete measures to ensure the safe operation of civil drones. And the new General Data Protection Regulation that will also be fully applicable to any kind of processing of personal data, which includes artificial intelligence and robots.

Second, we are obviously looking at any need for adjustment of the current legislation. And third we are well aware that legal certainty on liability is of paramount importance for innovators, investors and consumers, providing them with the legal certainty they need. But the complexity of digital technologies makes it particularly difficult to determine who is liable and to what extent in case of failure. That is why the Commission has put in its communication and presented a communication last month on building up a European data economy. We are consulting with a wide range of stakeholders on the new challenges in this field, covering the liability questions relating to autonomous systems. Simultaneously, we are evaluating the Product Liabilities Directive with regard to emerging technologies.

Fourth, testing and experimenting will be important as will gathering data and gaining experience. This in turn will then help us with designing a suitable legal framework. On the communication on building a new European data economy, we included plans for cross-border corridors to test connected automated driving.
My fifth and final point on the question of legislation is to underline the importance of smart legislation, technologically neutral and future proof when dealing with technologies and jobs. As Ms Delvaux said, we cannot even imagine what they will be in the future.

” Honourable Members, I agree with you that the impact of digitalisation on our societies and our labour market needs to be closely monitored and anticipated, and we have to improve our understanding of this phenomenon. The different studies that have assessed that evolution reached diverging conclusions from catastrophic predictions on the labour market to a positive impact on job creation. In 2015, the Fraunhofer Institute indicated that EU companies which are intensive users of robotics are less likely to offshore production to low-cost regions because robots improve their cost production so much that they can stay in high-wage regions and create other jobs. We all know that technological change will not only replace or change existing tasks, but it will, as Mr Mayer said, create new jobs in services, it will complement human skills. Robots are also used in many areas with labour shortages such as healthcare, farming and even manufacturing. Many robots do tasks that are repetitive and dangerous for humans, such as inspecting oil tanks or welding metal parts. Far from replacing humans, robots allow the workforce to focus on other more economically useful, creative or social activities where robots cannot and will never replace us.
The Commission is fully aware of the challenges ahead and has already launched concrete measures to address them. We adopted a New Skills Agenda for Europe, the Digitising European Industry blueprint and, last December, we launched a Digital Skills and Jobs Coalition, which aims at equipping the workforce at large with the necessary digital skills to thrive in a digital workplace.
Ladies and gentlemen once again, I would like to thank the European Parliament for this timely and comprehensive report and for the support for our activities. The issues raised and the measures proposed will need broader consultation and an in-depth analysis of their impact and consequences before we can draw conclusions, including on the possible legislative needs. Thank you for attention and I’m looking forward to our discussion.”

 

 

European Parliament (8th Legislature 2014-2019)
TEXTS ADOPTED Provisional edition
P8_TA-PROV(2017)0051

European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL))
The European Parliament,
– having regard to Article 225 of the Treaty on the Functioning of the European Union,
– having regard to Council Directive 85/374/EEC1,
– having regard to the study on Ethical Aspects of Cyber-Physical Systems carried out on behalf of the Parliament’s Science and Technology Options Assessment (STOA) Panel and managed by the Scientific Foresight Unit (STOA), European Parliamentary Research Service;
– having regard to Rules 46 and 52 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs and the opinions of the Committee on Transport and Tourism, the Committee on Civil Liberties, Justice and Home Affairs, the Committee on Employment and Social Affairs, the Committee on the Environment, Public Health and Food Safety, the Committee on Industry, Research and Energy and the Committee on the Internal Market and Consumer Protection (A8-0005/2017),

Introduction

A. whereas from Mary Shelley’s Frankenstein’s Monster to the classical myth of Pygmalion, through the story of Prague’s Golem to the robot of Karel ?apek, who coined the word, people have fantasised about the possibility of building intelligent machines, more often than not androids with human features;

B. whereas now that humankind stands on the threshold of an era when ever more sophisticated robots, bots, androids and other manifestations of artificial intelligence (“AI”) seem to be poised to unleash a new industrial revolution, which is likely to leave no stratum of society untouched, it is vitally important for the legislature to consider its legal and ethical implications and effects, without stifling innovation;

C. whereas there is a need to create a generally accepted definition of robot and AI that is flexible and is not hindering innovation;

D. whereas between 2010 and 2014 the average increase in sales of robots stood at 17% per year and in 2014 sales rose by 29%, the highest year-on-year increase ever, with automotive parts suppliers and the electrical/electronics industry being the main drivers of the growth; whereas annual patent filings for robotics technology have tripled over the last decade;

E. whereas, over the past 200 years employment figures had persistently increased due to the technological development; whereas the development of robotics and AI may have the potential to transform lives and work practices, raise efficiency, savings, and safety levels, provide enhanced level of services; whereas in the short to medium term robotics and AI promise to bring benefits of efficiency and savings, not only in production and commerce, but also in areas such as transport, medical care, rescue, education and farming, while making it possible to avoid exposing humans to dangerous conditions, such as those faced when cleaning up toxically polluted sites;

F. whereas ageing is the result of an increased life expectancy due to progress in living conditions and in modern medicine, and is one of the greatest political, social, and economic challenges of the 21st century for European societies; whereas by 2025 more than 20 % of Europeans will be 65 or older, with a particularly rapid increase in numbers of people who are in their 80s or older, which will lead to a fundamentally different balance between generations within our societies, and whereas it is in the interest of society that older people remain healthy and active for as long as possible;

G. whereas in the long-term, the current trend leans towards developing smart and autonomous machines, with the capacity to be trained and make decisions independently, holds not only economic advantages but also a variety of concerns regarding their direct and indirect effects on society as a whole;

H.whereas machine learning offers enormous economic and innovative benefits for society by vastly improving the ability to analyse data, while also raising challenges to ensure non-discrimination, due process, transparency and understandability in decision-making processes;

I. whereas similarly, assessments of economic shifts and the impact on employment as a result of robotics and machine learning need to be assessed; whereas, despite the undeniable advantages afforded by robotics, its implementation may entail a transformation of the labour market and a need to reflect on the future of education, employment, and social policies accordingly;

J. whereas the widespread use of robots might not automatically lead to job replacement, but lower skilled jobs in labour-intensive sectors are likely to be more vulnerable to automation; whereas this trend could bring production processes back to the EU; whereas research has demonstrated that employment grows significantly faster in occupations that use computers more; whereas the automation of jobs has the potential to liberate people from manual monotone labour allowing them to shift direction towards more creative and meaningful tasks; whereas automation requires governments to invest in education and other reforms in order to improve reallocation of the types of skills that the workers of tomorrow will need;

K. whereas in the face of increasing divisions in society, with a shrinking middle class, it is important to bear in mind that developing robotics may lead to a high concentration of wealth and influence in the hands of a minority;

L. whereas the development of robotics and AI will definitely influence the landscape of the workplace what may create new liability concerns and eliminate others; whereas the legal responsibility need to be clarified from both business sight model, as well as the workers design pattern, in case emergencies or problems occur;

M. whereas the trend towards automation requires that those involved in the development and commercialisation of AI applications build in security and ethics at the outset, thereby recognizing that they must be prepared to accept legal liability for the quality of the technology they produce;

N. whereas Regulation (EU) 2016/679 of the European Parliament and of the Council1 (the General Data Protection Regulation) sets out a legal framework to protect personal data; whereas further aspects of data access and the protection of personal data and privacy might still need to be addressed, given that privacy concerns might still arise from applications and appliances communicating with each other and with databases without human intervention;

O. whereas the developments in robotics and AI can and should be designed in such a way that they preserve the dignity, autonomy and self-determination of the individual, especially in the fields of human care and companionship, and in the context of medical appliances, ‘repairing’ or enhancing human beings;

P. whereas ultimately there is a possibility that in the long-term, AI could surpass human intellectual capacity;

Q. whereas further development and increased use of automated and algorithmic decision-making undoubtedly has an impact on the choices that a private person (such as a business or an internet user) and an administrative, judicial or other public authority take in rendering their final decision of a consumer, business or authoritative nature; whereas safeguards and the possibility of human control and verification need to be built into the process of automated and algorithmic decision-making;

R. whereas several foreign jurisdictions, such as the US, Japan, China and South Korea,are considering, and to a certain extent have already taken, regulatory action with respect to robotics and AI, and whereas some Member States have also started to reflect on possibly drawing up legal standards or carrying out legislative changes in order to take account of emerging applications of such technologies;

S. whereas the European industry could benefit from an efficient, coherent and transparent approach to regulation at Union level, providing predictable and sufficiently clear conditions under which enterprises could develop applications and plan their business models on a European scale while ensuring that the Union and its Member States maintain control over the regulatory standards to be set, so as not to be forced to adopt and live with standards set by others, that is to say the third countries which are also at the forefront of the development of robotics and AI;

General principles Continue reading “Worth reading: The EP legislative initiative on Robotics”

To execute or not to execute EctHR judgement should not be questioned… even before a  Constitutional Court.

by Katerina SEREDA 

Non – execution of the EctHR judgements is a worrisome trend, reinforced not only by the unreasonable delays in discharging the obligations under the art. 46 of the ECHR, but also by the  direct preventing the implementation of the EctHR judgements by the Contracting Parties.

«When a decision of an international body interpreting the provisions of an international treaty concerns fundamentals of the Constitution, Russia has an exceptional right to deviate from enforcement of this decision», stated the Constitutional Court of Russian Federation in its judgement on January 19, 2017. It also deemed that ECHR judgement from 31 July 2014 in the case of “OJSC” Oil Company “Yukos” vs Russia”  are “unenforceable”.

“No possibility to enforce” in Russian Federation, has become a new window of opportunity to avoid execution of the EctHR judgements. This window was opened by the 2015 amendments to the Federal Law on Constitutional Court of Russian Federation. Some countries like Azerbaijan started to follow the same path.  In Azerbaijan, a Draft Constitutional Law, along the lines of the Russian Constitutional Court law, has been presented to the parliament during the 2016 spring session of the National Assembly.  This worrisome trend is threatening the integrity and the effectiveness of the ECHR system,  by giving  the impression that the standards and rules can be followed and enforced at convenience and will.

On the matter

On 31 July 2014 in its final judgement in the case “OAO Neftyanaya Kompaniya Yukos v. Russia” (Application no. 14902/04) the ECtHR obliged Russia to pay the applicant company’s shareholders as they stood at the time of the company’s liquidation and, as the case may be, their legal successors and heirs the compensation for the pecuniary damage amounting to EUR 1.8 billion.

The ECtHR on the ground of its principal judgement on the case of 20 September 2011 concluded that the Applicant Company has suffered pecuniary damage as the result of violation of Article 1 of Protocol no.1 to the Convention for the Protection of Human Rights and Fundamental Freedoms because of retrospective imposition of fines for tax offenses for 2000 and 2001 (EUR 1.3 billion), 7% of the enforcement fee (EUR 0.5 billion), disproportionate nature of the enforcement proceedings – which shall be compensated under Article 41 of the Convention.

Based on the amendments to Federal Constitutional Law from Dec. 2015 on Constitutional Court of Russian Federation,  the Ministry of Justice of Russian Federation excercised its right to challenge (question) the enforceability of the ECHR judgements before the Constitutional Court, and submitted its request dealing with the ECtHR judgment of 31 July 2014 with respect to the case “OAO Neftyanaya Kompaniya Yukos v. Russia” on two grounds:

a) the interpretation of the international treaty provided by the EctHR in this judgement, contradicts the norms and the principles of the Constitution of Russian Federation with the meaning of the interpretation of the Constitution of Russian Federation, provided by the Constitutional Court: the enforcement in respect of the compensation to the shareholders, liquidated in November 2007, results in violation of provisions of Articles 6 (Section 2), 17 (Section 3), 19 (Section 1), 35 (Sections 1 and 3), 46 (Section 3), 55, and 57 of the Constitution of the Russian Federation within the meaning of the legal positions of the Constitutional Court of the Russian Federation (Judgments of 30 July 2001 No. 13-П, of 14 July 2005 No. 9-П and etc.), the constitutional principle of justice and equality, including applications to an international body for the protection of human rights;

b) awarding the compensation to unidentified number of persons in whose respect the ECtHR did not find any violations and who were not a party before the EctHR, violates the Convention, that limits awarding the compensation only to a victim party Articles 34, 35, 41 of the Convention.

The Venice Comission in its interim (adopted March, 2016) and final opinion (June, 2016) On the 2015 amendments to the Federal Law on Constitutional Court, clearly concluded that the execution of the EctHR judgements is an unequivocal, imperative legal obligation is not a matter of the choice of the State which decisions to be implemented and which not. The execution of ECtHR judgement is, primarily, the obligation of the Government of the political/administrative nature. And, the Constitutional Court, if being involved risks becoming “the political arbiter of all controversies surrounding international decisions”. In both opinions the Venice Commission underscored that the review of the decision by the Constitutional Court cannot challenge the validity of the EctHR judgement – it shall be executed in accordance with the Art. 46 ECHR. Only the modality of execution may be at a State’s discretion.  Individual measures of execution contained in judgments of the ECtHR, such as the payment of just satisfaction, may not be the object of an assessment of constitutionality.  Furthermore, The Venice Comission stated that the provisions on “no execution measure may be taken if the Constitutional Court finds that a judgment is non-enforceable” (Article 1044 paragraph 2 and Article 106 part 2) is in direct conflict with Russia’s international obligations under the Vienna Convention on the Law of Treaties and Article 46 ECHR and should be removed.

Therefore, to execute or not to execute EctHR judgement is not the question… even if it was submitted before the Constitutional Court.

 

Original published here 

by DR ALBERT SANCHEZ-GRAELLS

The High Court has today issued its Judgment in the dispute about the UK Parliament’s necessary approval of a Brexit notification–see R (Miller) -V- Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). It has ruled that such Parliamentary approval is indeed required as a matter of UK constitutional and public law. The Government has already announced that it will appeal this decision to the UK Supreme Court (UKSC). The implications of such an appeal are important and need to be carefully considered. One such possible consequence is that the appeal (indirectly) brings the case to the docket of the  Court of Justice of the European Union (CJEU).

In my view, an appeal of the High Court’s Judgment before the UKSC will indeed trigger a legal requirement under EU law for the UKSC to send a reference for a preliminary ruling to the CJEU. I have rehearsed most of my arguments on twitter earlier (see here and here) and this posts brings them together.

Basic EU Law Background

Article 267(1)(a) TFEU establishes the monopoly of interpretation of the CJEU and it indicates the Court shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaties. Article 267(2) then goes on to enable the domestic courts of the Member States to issue request preliminary rulings from the ECJ where questions of interpretation of EU law are raised before them and they consider that a decision on the question is necessary to enable them to give judgment. However, that discretion of domestic courts to request preliminary rulings from the CJEU does not apply to the courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law. In that case, Article 267(3) indicates that where a question on the interpretation of EU law is raised, the highest court  shall bring the matter before the CJEU.

The uncertainties surrounding the interpretation of Art 50 TEU before the High Court

One of the extremely complex issues concerning the UK’s potential withdrawal from the EU following the Brexit vote of 23 June 2016 concerns the interpretation of Article 50 TEU (on this, see here). One of the difficult sub-questions concerns the (ir)reversibility of an Art 50 TEU trigger notification. This is an essential element for an assessment of the UK’s constitutional requirements for the delivery of such notification, as the High Court’s Judgment makes clear.

Indeed, as a preliminary issue, in today’s Judgment, the High Court has addressed the problematic interpretation of Art 50 TEU. Unanimously, the High Court has indicated that “Important matters in respect of Article 50 were common ground between the parties: (1) a notice under Article 50(2) cannot be withdrawn once it is given …” para [10]; and that “Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union and from the relevant Treaties at the end of the two year period, subject only to agreement on an extension of time …” para [11].

There are two ways of interpreting the High Court’s dealing with the argument on irreversibility of an Art 50 notification. First, that the High Court takes this approach in para [11] because it is common ground between the parties ex para [10]–what I would call the UK procedural approach. Second, that the High Court has of its own interpreted an Art 50 notification to be irreversible ex para [11], which happens to align with the common position of the parties in para [10]–what I would call the EU substantive interpretation approach.

The UK procedural approach is saved by the High Court’s discretion under Art 267(2) TFEU to consider that the interpretation of Art 50 TEU is actually not necessary for it to adjudicate the matter at hand because this is not part of the controversy between the parties. However, the EU substantive interpretation does trigger some issues because, having recognised the interpretation of Art 50 TEU as an important aspect for the adjudication of the case, the High Court should not have taken it upon itself to interpret it and should rather have requested a preliminary ruling from the CJEU. However, unless under a very expansive interpretation of the principle of sincere or loyal cooperation in Art 4(3) TEU, this does not amount to a breach of EU law.

The uncertainties surrounding the interpretation of Art 50 TEU before the UK Supreme Court

Now, in case of an appeal of the High Court’s decision before the UKSC, in my opinion, the referral to the CJEU is legally unavoidable (I will not deal for now with arguments of judicial politics or pragmatic views on the UKSC’s likely course of action). Even if the parties do not challenge or even raise to the UKSC’s consideration the matter of the (ir)reversibility of and Article 50 notification, it is a logical given that the UKSC needs to take a stance (even if implicit) on this point in order to be able to rule on the case. If it quashes the High Court’s decision, it needs to clarify the points of law which the High Court would have gotten wrong–one of which concerns the irrevocability of an Art 50 notification. if it upholds the High Court’s decision, it is (implicitly) accepting the assumption that an Art 50 notification is irrevocable. Either way, the UKSC cannot escape a substantial (implicit) consideration of the interpretation of Article 50.

In my view, this engages the UKSC’s obligation to request a preliminary ruling from the CJEU under Article 267(3) TFEU and not doing so triggers a risk of infringement of EU law by the UK due to the acts (or omission, in this case) of its highest court.

Semi-Advanced EU Law Background

The UKSC’s obligation to request a preliminary reference from the CJEU is controlled by the so-called CILFIT test, which establishes that “a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of [EU] law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has established that the question raised is irrelevant or that the [EU] provision in question has already been interpreted by the Court or that the correct application of [EU] law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of [EU] law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the [EU]” (283/81, EU:C:1982:335, para 21).

What does this mean for the UKSC in the Brexit litigation in case of appeal?

In short, my understanding of the CILFIT test is that a highest court of a Member State (the UKSC) must request a preliminary ruling on the interpretation of the Treaties to the CJEU and has no discretion not to do so unless: (a) the question is (objectively) irrelevant for the adjudication of the case, or (b) the provision has already been interpreted by the CJEU, or (c) there is no scope for reasonable doubt in the interpretation of the provision. None of these apply in the specific case of the Article 50 litigation.

First, it is inconceivable to me to argue that the interpretation of Art 50 and the (ir)revocability of a notice under it is irrelevant for the adjudication of this case. A different issue would be whether the UKSC could pragmatically sidestep the need to engage in that interpretation, either by presuming its content (the EU substantive interpretation approach mentioned above), or by insisting on the fact that it is common ground to the parties to the litigation and, therefore, the issue of the (ir)revocability of the notification is not (formally, explicitly) raised before it (the UK procedural approach.

However, in my opinion, neither of these avoidance strategies would meet the basic requirements of good faith in the interpretation of the CILFIT test, coupled with Article 4(3) TEU, which requires the domestic court to assess the need to request a preliminary ruling “in the light of the specific characteristics of [EU] law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the [EU]“. The interpretation of Article 50 TEU is, to put it simply, the most relevant EU constitutional law issue since the OMT litigation and one of the top, if not the top, EU constitutional law issue since the entry into force of the Lisbon Treaty. Engaging in semantics in the analysis of the first prong of the CILFIT test against this background (ie, stretching the narrow interpretation “irrelevant”) seems to me logically and legally unacceptable.

Second, it is plain that Art 50 has not been interpret by the CJEU yet. And, thirdly, it is also plain that there is scope (massive scope, a gaping hole) for reasonable doubt in the interpretation of Article 50 TEU. Thus, the so-called acte claire doctrine (ie the counterbalance of the CILFIT test) simply does not apply here.

Overall, in my opinion, the UKSC has an absolute and inexcusable obligation to request a preliminary ruling on the interpretation of Article 50 TEU from the CJEU the moment the appeal against the High Court’s Judgment (eventually) reaches its docket. Otherwise, the UKSC risks triggering an infringement of EU law and eventually creating liability in damages under the Kobler / Traghetti del Mediterraneo strand of case law on State liability. Again, I am not dealing with the arguments on the likelihood of an actual infringement case brought forward by the European Commission, or the CJEU’s eventual decision. I am, for now, simply stressing the state of EU law, which the UKSC would be well advised to bear in mind and uphold, unless it aims to contribute to the deterioration of the rule of law in the UK and the EU (which is something that keeps me awake at night).