Framing Big Data in the Council of Europe and the EU data protection law systems: Adding ‘should’ to ‘must’ via soft law to address more than only individual harms

On 19 November 2019 the Council of Europe hosted an international conference, immediately preceding the annual plenary meeting of its Committee of Convention 108, on “Convention 108+ and the future data protection global standard”. One of the authors made a presentation on “Comparing the EU and Council of Europe approach to Big Data”, and it is its contents and findings that are further elaborated in this paper; Its aim is, in essence, to incorporate the feedback received and to adapt past research on Big Data, that was mostly relevant to the EU, also on the Council of Europe data protection system. After a few preliminary remarks on Big Data terminology and possible regulatory approaches, Big Data regulation is examined against the EU and the Council of Europe data protection systems. Particular emphasis is given to the Council of Europe regulatory approach both in terms of Convention 108+ and with regard to its Guidelines on Big Data and AI. The authors believe that, because both the EU and the Council of Europe have avoided to refer to Big Data in their basic data protection regulatory texts (a most likely intentional omission), guidance is indeed needed, and it may well come in the form of soft law. The Council of Europe has taken the lead in this through its Guidelines; Their timely, comprehensive and balanced approach showcases the Council's will for such processing to indeed take place, but within a well-regulated environment, albeit not under a rigid regulatory construction.     

论欧洲理事会的人权保护制度对建立和完善国际人权保护制度的影响

欧洲理事会采取集体办法促进和保护人权的理论和实践对建立和完善国际人权保护制度产生了深远的影响 :区域性人权保护办法是在区域层面上施行《世界人权宣言》的有效途径 ;国际人权机构应通过改革不断提高人权的可司法性 ;主权国家应在采取集体办法保护区域人权方面积极行使主权权利 ;人权国际保护内在地要求增强个人的权利主体意识 ;国际人权保护机构应不断提高其工作效率。随着欧洲理事会的人权保护制度的不断完善 ,它在人权国际保护中的“领跑者”的形象和影响将得以继续显现。     

Networks of European National Human Rights Institutions

This article concerns the networks of European national human rights institutions (NHRIs). It examines how the sharing of best practices takes place through networks and how NHRIs achieve cooperation at both the international and regional levels. The article also analyses NHRI cooperation within three organisations: the United Nations, the Council of Europe and the EU. While cooperation at the international level facilitates their accreditation according to their compliance with the Paris Principles and enables them to participate in the sessions of the Human Rights Council, cooperation at the European level allows them to exchange information on issues of common concern and strengthens their relationship with regional bodies. In Europe, NHRIs cooperate with the Commissioner for Human Rights of the Council of Europe and might also do so with the recently established Fundamental Rights Agency of the EU.     

New Approaches to Technology Transfer from Publicly Funded Research

The conventional wisdom is that American universities transfer technologies more rapidly and more effectively than their European counterparts. While this appears to be true, it is important to note that there are substantial cultural, legal, and regulatory differences between the two regions, and even within Europe. We believe that European universities can enhance their effectiveness in technology transfer if this function is given more visibility and prestige, enhanced public support, and formal procedures are implemented to facilitate benchmarking. In this paper, we examine some of the differences in university technology transfer in Europe and the U.S., and discuss these new approaches, which have recently been fully supported by the European Commission.     

The Voice of the Community in Private Law Discourse

Formalist private lawyers, with their view of law as an autonomous sphere and their emphasis upon allocative rules, tend to approach the issue of the harmonisation of private law in Europe with the following question: are the substantive rights and remedies of private individual actors sufficiently similar within each of the Member States to allow for the unification of autonomous private legal systems. Here the issue is essentially one of terminology. While sceptical voices maintain that formal private law is also a more complex matter of interrelated procedures and practices, many formalists conclude that whilst the terms of rights and remedies may differ slightly throughout Europe, there is sufficient substantive convergence to allow for harmonisation. However, lawyers of a sociological persuasion who see private law as being contingent upon society Ð a process reflexively and recursively facilitating economic activities and responding to social change Ð consider harmonisation to be dependent upon the harmonisation of market practices themselves. This paper, one of the most subtle of sociological contributions, tackles this issue with an innovative eye to the increasing blurring of the distinction between public and private concerns. The voice of Europe is the voice of a political collective and theoretically, under the once sacrosanct paradigm of the public/private divide, should not be heard within the 'individualistic' sphere of private law. However, just as national private law judges are generally responding to social concerns and are seeking to integrate collective voices within a once 'atomised' realm, so too are they taking note of the political voice of Europe: attempting to respond to the desire for integration and harmonisation within their jurisprudence.     

Regulating tissue research: do we need additional rules to protect research participants?

This article explores whether additional rules are needed for the regulation of tissue research in Europe. A human rights-based approach (referring to international documents and illustrative examples from national legislation) is taken to address the question: what is so special about tissue, in particular when compared to personal data? The existing regimes in Europe on data protection and clinical trials are presented and examined for their suitability to govern tissue research, taking into account the differences between data and tissue. Six recommendations are outlined, highlighting important points future legislation on tissue research must take into account.     

Anti Race Discrimination Measures in Europe: An Attack on Two Fronts

Abstract In recent years, two measures against racial discrimination have been taken in Europe: the European Union adopted a Council Directive implementing the Principle of Equal Treatment between Persons irrespective of Racial or Ethnic Origin in June 2000; and, in December 2002, the European Commission against Racism and Intolerance, a body of the Council of Europe, adopted General Policy Recommendation no 7 on National Legislation to Combat Racism and Racial Discrimination. This article reviews these two instruments, which show many similarities, but also some differences. The differences are mainly their force, their personal and material scope, and their grounds for discrimination. The relationship between the two, and how they influence and strengthen one another to increase the pressure for adequate and effective legislation within the Member States of the European Union, is discussed and analysed.     

Regulation of Cohabitation, Changing Family Policies and Social Attitudes: A Discussion of Britain Within Europe

This article considers the differing legal and policy responses to the common trends of family restructuring away from marriage within Britain and Europe. Conceding that Europe is in the process of losing heterosexual marriage as a universal epicenter of family law at the very time when legal harmonization within Europe is being promoted, it goes on to explore the best way forward for regulating same- and different-sex cohabiting couples. It concludes that the legal response to these trends should be "de-moralized" but principled. A plurality of legal regulative structures to accommodate the now diverse family forms that are found within our less marriage-centric societies should be put in place providing at least some default protection for all families, yet allowing people to opt out and make their own arrangements.     

欧洲国家宪法法官制度初论

在20世纪,欧洲生成并发展出颇具特色的宪法法院制度,宪法法官作为宪法法院的决策主体承担了保障宪政生活中的合宪性这一重要使命。它们普遍建立了精英型宪法法官体系,通过任命机制控制宪法法官构成,使之具有合理性;同时,它们极力保障宪法法官的独立性,为其提供充分的权利保障及物质支持,并通过严格规范职业行为来保障宪法法官有效履行职责。     

Vocational education and training legislation in Central and Eastern European countries, the New Independent States and Mongolia (the partner countries). Experience of the European Training Foundation

The aim of this article is to give readers a brief insight into the legislative reforms underway in education and training (VET) in the countries of Central and Eastern Europe, the New Independent States and Mongolia (the partner countries). It is also hoped that through this, readers will have a flavour of the process of reform in general. Legislative reform is an ongoing process. Since 1989, all countries of Central and Eastern Europe, the New Independent states and Mongolia have addressed the issue of VET reform to meet the needs of their new environment. Some have amended existing education laws, some have adopted specific new VET laws. Others still have undertaken a complete reform of their education and vocational education and training system. The important underlying message is the importance of VET and its reform to the overall democratic and economic processes of countries in transition. This revised version was published online in July 2006 with corrections to the Cover Date.     

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

The Regulation of Media Markets in selected EU Accession States in Central and Eastern Europe

Abstract:   This article examines the phenomenon of policy transfer in the EU accession countries of the Czech Republic, Hungary, Poland and Slovenia. When formulating media laws in the early 1990s, these countries were presented with models put forth by advisors from the US and EU Member States. Advisors proposed models based upon their own domestic policy and/or organisation agendas. A resulting 'battle of the models' can be observed with different experts and actors lobbying for the adoption of contrasting regulatory models. Underlying this were often political, economic and trade interests. In particular, 'Western' governments were interested in guaranteeing the opening of new markets, and the stability of these new media markets for Western capital investment, as well as wider political concerns of consolidating democracy in Europe. Interest groups and NGOs wished to transfer their ideas to Eastern Europe often in advocacy of their own agendas in an enlarged Europe.     

欧洲水下滑翔机发展应用现状及其法律规制——对中国借鉴意义之思考

海洋观测与调查的科学活动为中国海洋事业的金方位发展提供了重要的基础资料和科学依据。科学技术的发展使得海洋科学调查方法不断面临新的变革。水下滑翔机，作为目前国际上的研究热点，欧洲对其发展及应用给予了高度关注，并在法律规制方面开始进行深入探讨。中国对于水下滑翔机研究起步较晚，尚未广泛应用，对其法律规制更是鲜有涉及。通过对欧洲水下滑翔机发展应用现状的介绍，详细分析了水下滑翔机的应用在目前国际法律体系中存在的法律规制问题，介绍了欧洲正在开展的相关工作，希望为中国相关规定的制定提供参考和借鉴，保障中国海洋调查新方法的顺利应用。     

The Integration of the European Union and the Changing Cultural Space of Europe: Xenophobia and Webs of Significance

The dialogic relationship between individuals and the cultural space of Europe embodies cultural definitions, political definitions and individual definitions. As individuals draw from Europe as a cultural space and strive to identify and define themselves, definitions are created against an ??other,?? leading to Europe being defined against the ??other.?? Identity is established through difference, and in this, the relationship between the EU??a force of integration??and Europe as a cultural space is strained. As boundaries change through the European Union, transforming the cultural space of Europe, the ??other?? against whom individuals have traditionally defined themselves is also transforming. This article asks if the integration of Europe through the European Union is resulting in the political mobilization of xenophobia and thereby transforming the cultural space of Europe into a xenophobic space. As many academics and professionals have argued that xenophobia in Europe has been on the rise since the 1990s, this paper will question how the relationship between the European Union??as a force of European integration??and Europe??as a cultural space??is contributing to the construction of xenophobia.     

Spatial patterns of homicide and political legitimacy in Europe*

Political legitimacy, or a state's “right to rule,” has been a concern for philosophers, political scientists, and sociologists for centuries. This paper examines the relationship between European states' level of political legitimacy and violence, as represented by their homicide rate. It is theorized that political illegitimacy affects homicide through deteriorating social institutions of control, violating the rules of reciprocity between the state and citizens, and/or creating an environment of “virtual statelessness” that encourages methods of “self-help.” Focusing on the modernized societies of Europe, where legitimacy may be more important to maintaining order, the present study reveals two important findings: political legitimate states have significantly lower levels of homicide, and high and low homicide rates in Europe are significantly clustered among post-Soviet states (high) and Western Europe (low).     

Environmental crime and green criminology in South Eastern Europe—practice and research

All contemporary societies are facing environmental crime as one among many modern threats to the environment and human / animal life and this is due to the unlimited exploitation of natural resources and pollution. The aim of the present paper is to describe different responses to environmental crime and the development of green criminology in South Eastern Europe. In this region environmental crime occurs under the influence of social conditions and circumstances in which the environment is used as a source of resources for survival, as well as economic factors which mean the environment is used as a resource for profit. For countries in South Eastern Europe it is typical that environmental criminals change their modus operandi and adapt to new socio-economic circumstances, use different loopholes in legislation and exploit gaps in infrastructure and enforcement leading to committing environmental offences without being processed and punished. In many countries of South Eastern Europe green criminology is still in its nascent stages but is focusing on similar obstacles and challenges to those identified elsewhere, such as multi-disciplinarity, cooperation with the natural sciences, and responding to particularities in the region, such as pollution of marine and coastal ecosystems, hunting tourism, and organized crimes such as timber logging.     

Three kinds of preindustrial household formation system in historical Eastern Europe: A challenge to spatial patterns of the European family

In their modelling and classificatory ventures western scholars have usually mistakenly included family forms in historical Eastern Europe by induction in well-established generalizations about Russian or Balkan populations. At the same time, well into the late 1990s, most of Eastern European historians have shown no interest in studying domestic groups in socio-historical perspective. This article attempts to restate that picture through a thorough analysis of an unprecedented collection of historical household data for the late eighteenth-century Polish-Lithuanian Commonwealth, one of the largests political entities in Europe of that time. Through an application of a variety of methodologies three regional family patterns have been distinguished on the historical Polish territories, their main characteristics described and then juxtaposed against the major features of paradigmatic examples of the ‘Eastern European family type’. The results indicate that the existing models of household systems in preindustrial Europe are far too rigid to meet the diversity of residential patterns of the Eastern European serfs. Analysis of the data set on spatially, culturally and socioeconomically diverse regions has also facilitated a preliminary identification of the factors shaping these family systems. The data presented here suggests that the conventional wisdom regarding the institutional mechanisms of the Eastern European manorialism of the second serfdom as sufficient to create a homogenous pattern of family residence must be seriously questioned. In particular, what must be meticulously revised is a sweeping generalization still in practice that posits a functional link between coercive forms of labor control and complex household structures among peasant subjects.     

The Islamic Headscarf: An Example of Surmountable Conflict between Sharî'a and the Fundamental Principles of Europe1

Abstract: The demand by certain Muslims living in Europe to wear the Islamic headscarf has led to important cases, before the courts of the Member States of the Union as much as before the European Court of Human Rights, above all with regard to public education. The Court of Human Rights and the Member States have taken different positions concerning the licitness of wearing the headscarf. The solutions adopted are, in fact, strongly influenced by the classical concept of relations between Church and State. In schools in Germany, where a relationship of cooperation exists between Church and State, the wearing of the veil is allowed, but only for the pupils, not for their teachers. In France, which has a model of strict separation between Church and State, neither teachers nor pupils are allowed to wear the veil. The tensions linked to wearing of the headscarf are but one example of conflict between sharî'a and the fundamental principles of Europe. These conflicts are not insurmountable. However, they do require efforts from both sides. The EU and the Member States must break with discriminatory practices against Muslims. The Muslims of Europe must construct a ‘European Islam’, re‐reading sacred texts in light of the characteristics and the values of the European societies in which they live.     

Trends in the Reaction on Crime in Criminal Justice Systems in Europe in 1990–2007: A Comparison of Four European Regions

Recorded crime and prison populations seem to be increasing in Europe. Some explanations for this situation can be related to changes in the reaction on crime by the Criminal Justice Systems. The information collected in the European Sourcebook of Crime and Criminal Justice Statistics (ESB) provides a good opportunity to look in more detail at the changes in the various stages of the Criminal Justice Systems in more than 40 European countries over the period 1990 to 2007. In this study we look mainly at the changes over time of recorded crimes, the offender ratio, the conviction ratio and punitivity in Europe where the countries are clustered into four regions: North/West, South, Central and East Europe. It was found that the increase in the number of recorded drug crimes and a possible higher priority for violent crimes could help explain the increase in recorded crimes during the last two decades. The Criminal Justice Systems in Europe, with some differences between regions within Europe and despite not having more police resources, succeed in finding more offenders. The conviction ratio appeared to be increasing as well, mainly in Central Europe. While punitivity for Europe as a whole is stable, there are vast differences in the levels and trends between the regions.