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In recent years a substantial literature has emerged concerning bias, discrimination, and fairness in artificial intelligence (AI) and machine learning. Connecting this work to existing legal non-discrimination frameworks is essential to create tools and methods that are practically useful across divergent legal regimes. While much work has been undertaken from an American legal perspective, comparatively little has mapped the effects and requirements of EU law. This Article addresses this critical gap between legal, technical, and organisational notions of algorithmic fairness. Through analysis of EU non-discrimination law and jurisprudence of the European Court of Justice (ECJ) and national courts, we identify a critical incompatibility between European notions of discrimination and existing work on algorithmic and automated fairness. A clear gap exists between statistical measures of fairness as embedded in myriad fairness toolkits and governance mechanisms and the context-sensitive, often intuitive and ambiguous discrimination metrics and evidential requirements used by the ECJ; we refer to this approach as “contextual equality.” This Article makes three contributions. First, we review the evidential requirements to bring a claim under EU non-discrimination law. Due to the disparate nature of algorithmic and human discrimination, the EU's current requirements are too contextual, reliant on intuition, and open to judicial interpretation to be automated. Many of the concepts fundamental to bringing a claim, such as the composition of the disadvantaged and advantaged group, the severity and type of harm suffered, and requirements for the relevance and admissibility of evidence, require normative or political choices to be made by the judiciary on a case-by-case basis. We show that automating fairness or non-discrimination in Europe may be impossible because the law, by design, does not provide a static or homogenous framework suited to testing for discrimination in AI systems. Second, we show how the legal protection offered by non-discrimination law is challenged when AI, not humans, discriminate. Humans discriminate due to negative attitudes (e.g. stereotypes, prejudice) and unintentional biases (e.g. organisational practices or internalised stereotypes) which can act as a signal to victims that discrimination has occurred. Equivalent signalling mechanisms and agency do not exist in algorithmic systems. Compared to traditional forms of discrimination, automated discrimination is more abstract and unintuitive, subtle, intangible, and difficult to detect. The increasing use of algorithms disrupts traditional legal remedies and procedures for detection, investigation, prevention, and correction of discrimination which have predominantly relied upon intuition. Consistent assessment procedures that define a common standard for statistical evidence to detect and assess prima facie automated discrimination are urgently needed to support judges, regulators, system controllers and developers, and claimants. Finally, we examine how existing work on fairness in machine learning lines up with procedures for assessing cases under EU non-discrimination law. A ‘gold standard’ for assessment of prima facie discrimination has been advanced by the European Court of Justice but not yet translated into standard assessment procedures for automated discrimination. We propose ‘conditional demographic disparity’ (CDD) as a standard baseline statistical measurement that aligns with the Court's ‘gold standard’. Establishing a standard set of statistical evidence for automated discrimination cases can help ensure consistent procedures for assessment, but not judicial interpretation, of cases involving AI and automated systems. Through this proposal for procedural regularity in the identification and assessment of automated discrimination, we clarify how to build considerations of fairness into automated systems as far as possible while still respecting and enabling the contextual approach to judicial interpretation practiced under EU non-discrimination law.

This article analyses the new challenges the ECB faces in implementing its monetary policy and asks to what extent judicial review can help address these.The ECB mandate provides no clear guidance for many of the ECB’s recent challenges, which include a sovereign bond market panic, technical limits to the efficacy of its tools, and questions concerning the environmental impact of its operations. For this reason, the ECB’s decisions suffer from democratic authorization gaps; it makes choices with far-reaching consequences for which there is no clear basis in the mandate. In this context, courts can either opt to accept choices made by the ECB, as the ECJ has mostly done, or, as the Bundesverfassungsgericht decided to do, itself weigh in on monetary policy. Neither approach, we argue, can improve the tenuous democratic legitimacy of the ECB in the absence of proper democratic guidance. There are, however, ample ways the Member States and the EU’s political institutions can provide the ECB with guidance on how to deal with its new choices.

The paper focuses on the current legal barriers to text and data mining (TDM) in the context of smart disclosure systems (SDSs) whose aim is to provide consumers with improved access to the data needed to make informed decisions. The use of intellectual property rights and contracts, combined with technological protection measures, can hinder TDM and the deployment of SDSs.Further, those legal constraints can negatively impact artificial intelligence innovation that requires improved access to data. There are thus various arguments for enhanced “machine legibility”.However, the TDM exception included in the draft Copyright in the DSM Directive and the various amendments proposed by the European Parliament or the Council do not appear to clear the way for enhanced “machine legibility”. In relation to SDSs, we also argue that the principle of transparency, embedded in consumer and data protection laws, can serve as a last line of defence against prohibition of TDM.

To download this paper please click https://discovery.ucl.ac.uk/id/eprint/10086921/The European Union’s 2013 Country-by-Country Reporting (CBCR) rules bring within the public domain information on corporate payments made to governments all over the world for the purpose of exploiting natural resources in the oil, gas, mining and logging sectors. In so doing, the CBCR rules enhance transparency in these sectors and aim to reduce tax avoidance and corruption in resource-rich countries. Arguably, they also contribute to the European Commission’s long-term strategy to secure sustained access to raw materials in the European Economic Area. The CBCR rules represent one of the only three binding regulatory frameworks that have been adopted at the EU level to implement the 2011 UN Guiding Principles on Business and Human Rights. Just as with the two other initiatives that came into existence (the Non-Financial Reporting Directive and the Conflict Minerals Regulation), the immediate impact on the competitiveness of corporations based in the EU was a key concern during the legislative process. This article uncovers the two strategies that were employed to overcome such concern and give the CBCR rules a ‘global’ character.

Commerce in some data is, and should be, limited by the law because some data embody values and interests—in particular, human dignity—that may be detrimentally affected by trade. In this Article, drawing on the Roman law principles regarding res extra commercium, we investigate the example of personal data as regulated under the EU Charter and the GDPR. We observe that transactions in personal data are not forbidden but subject to what we call a dynamically limited alienability rule. This rule is based on two dynamic variables: The nature of data and the legal basis for commercially trading such data at a primary or secondary level. Accordingly, in order to deal with such dynamism and the uncertainty it poses, we propose a general two-stage reasonableness test that should help legal practitioners, judges, and lawmakers to consider when trade in data is illicit and who, if anyone, shall be held responsible for this mischief. Finally, we show how the two-stage test and the limited alienability rule can advance European contract law and help enforce legal principles associated with such data extra commercium in automated and autonomous data trading systems.

Child work in England and Wales has been a well-researched topic from a historical perspective, but increasingly side-lined in socio-legal scholarship. This work aims to bring back this topic to the legal debate, by considering the relevant legal framework and related international and EU instruments, the experiences of working children in England and Wales, and the legal enforcement of the current standards by public authorities. Priorities for the future are also highlighted, with the ultimate intention of prompting greater monitoring and empirical research in this field.

This article analyses, defines, and refines the concepts of ownership and personal data to explore their compatibility in the context of EU law. It critically examines the traditional dividing line between personal and non-personal data and argues for a strict conceptual separation of personal data from personal information. The article also considers whether, and to what extent, the concept of ownership can be applied to personal data in the context of the Internet of Things (IoT). This consideration is framed around two main approaches shaping all ownership theories: a bottom-up and top-down approach. Via these dual lenses, the article reviews existing debates relating to four elements supporting introduction of ownership of personal data, namely the elements of control, protection, valuation, and allocation of personal data. It then explores the explanatory advantages and disadvantages of the two approaches in relation to each of these elements as well as to ownership of personal data in IoT at large. Lastly, this article outlines a revised approach to ownership of personal data in IoT that may serve as a blueprint for future work in this area and inform regulatory and policy debates.

The EU has throughout its history benefited from variable levels of popular support and revealed different levels of capacity to deal with crises. The current circumstances, on account of financial pressures, social instability and present geographical and policy scope of the EU, require serious introspection and ‘soul searching’. What can be done if the EU is not to perish and, hopefully, become more part of the solution than of the problem? May becoming more humane be the answer?‘Humane’ may be defined in different ways, including compassionate, sympathetic and humanitarian. Non-Western cultures seem to have made a much more sophisticated use of this notion in broader contexts up to the present day. Chinese culture, through the Confucian notion of ‘jen’, places enormous value on humaneness as a way of achieving balance, empathy and the moral standard. In the African context, the notion of ‘ubuntu’ has served as the gateway through which humaneness infiltrates all aspects of society, including law and policy, namely by focussing on participation, co-responsibility, interdependence, respect and equality. This introduction presents an analytical framework through which the degree of humaneness of the different fields of EU law and policy can be assessed.

The concepts of 'liability age' and 'capacity responsibility' have been widely dissected by researchers in various fields. However, their application to both criminal and tort liability of children remains inconsistent. Furthermore, rarely has an interdisciplinary approach adequately dealt with these concepts and their impact on legal norms. This text investigates the notion of criminal and tort liability age in connection with the notion of capacity responsibility, in relation to children, and further questions the adequacy of the relevant legal norms. This endeavour to improve the applicable legal norms is supported by an analysis of the pertinent findings in the field of psychology, particularly in respect of the moral development of children. Informed by an excursion through the ideas of Piaget, Kohlberg, and Gilligan, among others, regarding the moral development of children, the text also serves to assess the impact of concepts of moral responsibility and maturity, in relation to the development of the legal norms, which determine the age of liability of children. The text concludes with a proposal for a criminal and tort liability age framework, based upon indicative/presumptive age milestones, and an integrated approach to all relevant circumstances in casu.

Since the beginning of the 2008 economic crisis, reports of child work across Europe have increased. This article looks into the European Union (eu) legal framework that applies to children who work, and offers a socio-legal analysis of child work regulation more generally. In so doing, it considers the role of a range of factors relevant to the regulation of child work, including children’s rights, cultural relativism, social constructions of childhood, empirical evidence of the benefits and harm of child work, and the different contexts in which children are found working. Crucially, the article advances a justification for retaining a restrictive approach in relation to child work in the European context on the basis of legal, social, economic and cultural factors.

Portugal’s migration history has been extensively explored in academic literature, including in legal scholarship. Yet, very little attention has so far been directed towards Portuguese refugee law. This may be due to the relatively low number of asylum seekers that Portugal receives, but that does not justify neglecting the study of the Portuguese socio-legal framework applicable to asylum seekers and refugees. This short piece summarises the findings of an article that addresses this gap by analyzing the framework in a European context, enhancing the analysis with a case study of lesbian, gay, bisexual, transsexual, and intersex (LGBTI) asylum seekers. The analysis explores the evolution of the current legal framework, the procedures and remedies available to asylum seekers, the substantive standards applied in decision-making, and the broader socio-legal resources offered to asylum seekers. Several shortcomings and possible avenues of improvement are also identified.

European Union law has curtailed the traditional discretion Member States have in ordering non-nationals to leave their territory. Although Directive 2004/28 (the Citizenship Directive) has enhanced the system of protection afforded to offending European Union citizens, it still contains a number of cracks that lead to policy incoherence and gaps in rights protection. This is evident in the first rulings on Article 28(3) of Directive 2004/38 concerning the deportation of offending EU citizens. These issues also threaten to transform European Union citizenship from a fundamental status into a thin overlay that, under pressure from national executive power, loses its effect and significance. To be sure, EU citizenship has demonstrated that community belonging does not have to be based on organic-national qualities, cultural commonalities, or individuals' conformity to national values, but the continued deportation of long-term resident Union citizens makes nationality the ultimate determinant of belonging. The subsequent discussion suggests possible remedies and makes recommendations for institutional reform.

Big Data analytics and artificial intelligence (AI) draw non-intuitive and unverifiable inferences and predictions about the behaviors, preferences, and private lives of individuals. These inferences draw on highly diverse and feature-rich data of unpredictable value, and create new opportunities for discriminatory, biased, and invasive decision-making. Concerns about algorithmic accountability are often actually concerns about the way in which these technologies draw privacy invasive and non-verifiable inferences about us that we cannot predict, understand, or refute.Data protection law is meant to protect people’s privacy, identity, reputation, and autonomy, but is currently failing to protect data subjects from the novel risks of inferential analytics. The broad concept of personal data in Europe could be interpreted to include inferences, predictions, and assumptions that refer to or impact on an individual. If seen as personal data, individuals are granted numerous rights under data protection law. However, the legal status of inferences is heavily disputed in legal scholarship, and marked by inconsistencies and contradictions within and between the views of the Article 29 Working Party and the European Court of Justice.As we show in this paper, individuals are granted little control and oversight over how their personal data is used to draw inferences about them. Compared to other types of personal data, inferences are effectively ‘economy class’ personal data in the General Data Protection Regulation (GDPR). Data subjects’ rights to know about (Art 13-15), rectify (Art 16), delete (Art 17), object to (Art 21), or port (Art 20) personal data are significantly curtailed when it comes to inferences, often requiring a greater balance with controller’s interests (e.g. trade secrets, intellectual property) than would otherwise be the case. Similarly, the GDPR provides insufficient protection against sensitive inferences (Art 9) or remedies to challenge inferences or important decisions based on them (Art 22(3)).This situation is not accidental. In standing jurisprudence the European Court of Justice (ECJ; Bavarian Lager, YS. and M. and S., and Nowak) and the Advocate General (AG; YS. and M. and S. and Nowak) have consistently restricted the remit of data protection law to assessing the legitimacy of input personal data undergoing processing, and to rectify, block, or erase it. Critically, the ECJ has likewise made clear that data protection law is not intended to ensure the accuracy of decisions and decision-making processes involving personal data, or to make these processes fully transparent.Conflict looms on the horizon in Europe that will further weaken the protection afforded to data subjects against inferences. Current policy proposals addressing privacy protection (the ePrivacy Regulation and the EU Digital Content Directive) fail to close the GDPR’s accountability gaps concerning inferences. At the same time, the GDPR and Europe’s new Copyright Directive aim to facilitate data mining, knowledge discovery, and Big Data analytics by limiting data subjects’ rights over personal data. And lastly, the new Trades Secrets Directive provides extensive protection of commercial interests attached to the outputs of these processes (e.g. models, algorithms and inferences).In this paper we argue that a new data protection right, the ‘right to reasonable inferences’, is needed to help close the accountability gap currently posed ‘high risk inferences’ , meaning inferences that are privacy invasive or reputation damaging and have low verifiability in the sense of being predictive or opinion-based. In cases where algorithms draw ‘high risk inferences’ about individuals, this right would require ex-ante justification to be given by the data controller to establish whether an inference is reasonable. This disclosure would address (1) why certain data is a relevant basis to draw inferences; (2) why these inferences are relevant for the chosen processing purpose or type of automated decision; and (3) whether the data and methods used to draw the inferences are accurate and statistically reliable. The ex-ante justification is bolstered by an additional ex-post mechanism enabling unreasonable inferences to be challenged. A right to reasonable inferences must, however, be reconciled with EU jurisprudence and counterbalanced with IP and trade secrets law as well as freedom of expression and Article 16 of the EU Charter of Fundamental Rights: the freedom to conduct a business.

Commentary on judgment of the Court of Justice of the European Union on case F v Bevándorlási és Állampolgársági Hivatal, relating to credibility assessment and means of evidence in asylum cases involving sexual orientation.

Since the 1990s, the European Union (EU) has slowly developed an increasingly sophisticated body of asylum law and policy, known as the Common European Asylum System (CEAS). This framework – both in the shape of legislative instruments and case law – has inevitably also affected those asylum seekers who claim asylum on the basis of sexual orientation and/or gender identity (SOGI). This has been vividly demonstrated by particular norms in EU asylum instruments and judgments of the Court of Justice of EU (CJEU). The current CEAS can be said to have several shortcomings in relation to SOGI claims, including in relation to: country of origin information; the notion of ‘safe country of origin’; the burden of proof and the principle of benefit of the doubt; the concept of a ‘particular social group’; and the definition of persecution. A new set of proposals for reform of the CEAS was put forward in 2016 by the European Commission, and these also affect SOGI asylum claims in precise and acute ways. This policy brief scrutinises these proposals of reform, and assesses the extent to which these proposals and different institutional positions address, ignore or aggravate the issues that currently affect asylum seekers who identify as LGBTI (lesbian, gay, bisexual, trans and intersex). The policy brief makes fifteen recommendations for European policymakers in regards to the reform of the CEAS, in order to ensure that the needs of LGBTI asylum seekers and refugees are effectively addressed and their rights are respected. Academics from the University of Sussex working on the Sexual Orientation and Gender Identity Claims of Asylum (SOGICA) project, funded by the European Research Council, are calling for policymakers to implement these recommendations in order to render the CEAS fairer for SOGI asylum seekers.

La monografia affronta il tema dei limiti alla tutela del c.d. "Made in" fra integrazione europea ed ordinamenti giuridici nazionali. Dopo una ampia premessa introduttiva, volta ad inquadrare l'argomento nel contesto evolutivo dell'integrazione europea e i suoi recenti sviluppi in chiave "personalista", i due capitoli centrali affrontano il tema definendo il concetto giuridico di "origine" ai fini della c.d. "comunicazione commerciale", gli obblighi europei e nazionali in materia di etichettatura, presentazione e pubblicità dei prodotti con riferimento alla specifica questione trattata, la politica UE di valorizzazione della qualità e le sue ricadute applicative nonché i residui spazi per la regolamentazione nazionale di marchi certificativi di origine, denominazioni geografiche ed attestazioni di tipicità. Il volume si conclude con una rilettura critica della giurisprudenza consolidata della Corte di giustizia UE alla luce della possibile natura di "diritto culturale" della dichiarazione di origine delle merci e del nuovo approccio dell'Unione europea ai temi della tutela del consumatore e dei suoi diritti fondamentali, fra i quali la trasparenza e l'informazione.

Portugal’s migration history has been extensively explored in academic literature, including in legal scholarship. Yet, very little attention has so far been directed towards Portuguese refugee law. This may be due to the relatively low number of asylum seekers that Portugal receives, but that does not justify neglecting the study of the Portuguese socio-legal framework applicable to asylum seekers and refugees. This article addresses this gap by analyzing the framework in a European context, enhancing the analysis with a case study of lesbian, gay, bisexual, transsexual, and intersex (LGBTI) asylum seekers. The analysis explores the evolution of the current legal framework, the procedures and remedies available to asylum seekers, the substantive standards applied in decision-making, and the broader socio-legal resources offered to asylum seekers. Several shortcomings and possible avenues of improvement are also identified.

13 Vindobona Journal of International Commercial Law and Arbitration (2009), pp. 179-196The paper investigates the interaction between the United Nations Convention on the International Sale of Goods of 11 April 1980 (CISG) and European Community law. It outlines the historical involvement of the European Community in the efforts to create a global uniform sales law (first through the Hague Sales Laws, then through the CISG), before elaborating on the way in which the CISG has influenced various law making efforts of the EU (the EC Consumer Sales Directive, the EC Late Payments Directive, other EC Directives, the ongoing plans to create a European 'Optional Instrument', and the revised rule on the jurisdiction of the courts at the place of performance under Article 5 No. 1 of the Brussels I Regulation). The final part of the paper concentrates on the influence the CISG has and could have on the interpretation of European Community law, and makes the case against the European Court of Justice's power of interpretation over the CISG.

The debate around private law harmonisation in the EU has gradually moved from a narrow scope of market-related issues to the creation of a European civil code. The relationship between this process and children's rights is, however, rarely acknowledged. The political, social and legal legitimacy of these harmonisation efforts have come under strict scrutiny, but hardly ever from the point of view of children. This article explores the impact of the process of legal harmonisation on children's rights, and uses the issue of children's tort liability as a case-study. The legal solutions in this field are analysed and compared, and the academic proposals for harmonisation are assessed. This choice of subject and approach allows us to assess the advisability of further harmonisation, illustrate the importance of socio-economic factors in this process, and highlight the relevance of children's rights and fundamental rights to this debate.