Neuro-rights

by Felipe Debasa (University Rey Juan Carlos, Madrid)

The history of social evolution is also the history of social rights achievements and in this equation the role of technology must be taken into account. Therefore, we have to ask ourselves whether the technology that exists at any given moment shapes social evolution or whether it is society that creates the technology it needs for its development. We think that it is available technology that shapes society, and in this respect, we could cite how the geographical limits of the provinces in Spain and Portugal were marked according to the technology of displacement existing at the time: the horse. Probably if the limit were set today, it would not be on the basis of the distance a person can travel to and from the place in a single day.

By legal system or law, we are referring to the set of rules that regulate human relations in society and which are imposed by States in a coercive manner. But in the Fourth Industrial Revolution, the era in which social changes occur in a rapid and disruptive manner, the law is also the regulator that allows these social changes to be accelerated or slowed down. Thus, with regard to new technologies, perhaps we could explain why Anglo-Saxon countries implement technology in society much more quickly than Latin countries. Remember Cordeiro, J. L, that in Anglo-Saxon countries what the law does not explicitly prohibit is basically allowed; while in Roman-based legal systems what is not expressly regulated is basically prohibited.

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Editorial of January 2021

Pedro Madeira Froufe (Editor) and Tiago Sérgio Cabral (Managing Editor) 

Editorial of January 2021 – Heresy, realpolitik, and the European Budget

1. The negotiation preceding the final approval of the 2021-2027 Multiannual Financial Framework (hereinafter, “MFF” or “Budget”) has marked by a significant number of twists, turns and eleventh-hour surprises. From the beginning this would always be a difficult negotiation. Being the first budget without the UK as a Member State, on one hand there was the need to show a united European Union after Brexit, but, on the other hand, there was the always unpleasant matter of redistributing the bill among remaining Member States.

2. In 2018, the Juncker Commission proposed a Budget with the value €1 135 Billion. Parliament considered the proposal not to be ambitious enough, an made a reinforced “counter-offer”, naming a much higher price for its consent in its November 2018 Interim Report on the Budget. However, in Council negotiations, the proposal was on track to be severely reduced. Plenty of factions were formed around the budget discussion such as the frugals (who wished to cap the budget at 1% of the GNI) or the friends of cohesion (who were not satisfied with cuts or shifting of funds from cohesion). Europe’s farming industry also lobbied against the decline in importance of the Common Agricultural Policy, and especially direct payments in the budget. At the end, things certainly seemed to be going into a pretty disappointing direction. The most likely result appeared to be a non-innovative budget pushed through after plenty of (arguably) petty squabbling.

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Summaries of judgments: Lietuvos geležinkeliai AB v. Commission

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgment from General Court (First Chamber Extended Composition) of 18 November 2020, T-814/17, Lietuvos geležinkeliai AB v. Commission

Competition – Abuse of a dominant position – Rail freight market – Decision finding an infringement of Article 102 TFEU – Access by third-party undertakings to infrastructure managed by Lithuania’s national railway company – Removal of a section of railway track – Concept of “abuse” – Actual or likely exclusion of a competitor – Calculation of the amount of the fine – 2006 Guidelines on the method for setting fines – Remedies – Proportionality – Unlimited jurisdiction

Facts

Lietuvos geležinkeliai AB (LG) is a Lithuanian national railway company responsible for the management of the Lithuanian railway and provides rail transport services for freight and passengers. The Lithuanian undertaking Orlen Lietuva AB (Orlen) is specialized in refining crude oil and distributing refine oil products. Both had since 1999 an agreement according to which LG provided to the last undertaking transport services on the Lithuanian rail network, more precisely on the shorter route to Latvia. However, in 2008, following a commercial dispute between both undertakings regarding the rates paid by Orlen to LG for its transport services, Orlen explored the possibility of contracting the undertaking LDZ for rail transport services of its freight to Latvia.

In September 2008, LG suspended the traffic on a 19km long section of the shorter route to Latvia after identifying a defect in the rail track and later, in October 2008, LG proceeded with the complete removal of the entire track.

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Summaries of judgments: Privacy International | La Quadrature du Net and Others | R.N.N.S. and K.A. v Minister van Buitenlandse Zaken

Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
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Judgments of the Court (Grand Chamber) of 6 October 2020 Privacy International (C‑623/17, EU:C:2020:790) and La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791)

Reference for a preliminary ruling – Processing of personal data in the electronic communications sector – Providers of electronic communications services – Hosting service providers and Internet access providers – General and indiscriminate retention of traffic and location data – Automated analysis of data – Real-time access to data – Safeguarding national security and combating terrorism – Combating crime – Directive 2002/58/EC – Scope – Article 1(3) and Article 3 – Confidentiality of electronic communications – Protection – Article 5 and Article 15(1) – Directive 2000/31/EC – Scope – Charter of Fundamental Rights of the European Union – Articles 4, 6, 7, 8 and 11 and Article 52(1) – Article 4(2) TEU

Facts

Following its judgments of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), and of 2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018:788), the ECJ ruled on four requests for a preliminary ruling from jurisdictions in three Member States in proceedings concerning the lawfulness of legislation adopted by those Member States in the field of processing of personal data in the electronic communications sector, laying down in particular an obligation for providers of electronic communications services to retain traffic and location data for the purposes of protecting national security and combating crime.

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The “speciality” of Social Rights: guarantees of public employment in the Portuguese Constitution before European Union Law

by Ricardo Sousa da Cunha, PhD (JUSGOV/UMinho, ESG/IPCA)

The Constitution of the Portuguese Republic (CRP) enshrines in article 47.º, n.º 2 a guarantee of public employment after a public tender that has been challenged in the application of European Union Law by the domestic courts.

This constitutional guarantee was the basis for the decision of the Constitutional Court n.º 368/00, of 11 July 2000, which upheld the challenges on the constitutionality of legal provisions (art. 10.º, n.º 2 of Law n.º 23/2004, of 22 June, and art. 14 of DL n.º 427/89, of 7 December) determining the nullity of labor contracts of public entities with civil servants that had not been selected by a public tender. The basis for this decision was the fulfilment of the constitutional principle of equal sharing of public benefits and costs as a consequence of the principle of the rule of law.

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Summaries of judgments: Casino, Guichard-Perrachon and AMC v. Commission |Intermarché Casino Achats v. Commission | Les Mousquetaires and ITM Entreprises v. Commission

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgments from General Court (Ninth Chamber Extended Composition) of 5th October 2020: T – 249/17, Casino, Guichard-Perrachon et Achats Merchandises Casino SAS (AMC)/Comission, T- 254/17, Intermarche Casino Achats/Comission e T- 255/17, Les Mousquetaires e ITM Entreprises/Comission

Competition – Administrative Procedure – Decision ordering an inspection– Illegality of Article 20 of Regulation (CE) n.º 1/2003 – Right to an effective remedy – Principle of equality of arms – Obligation to state reasons for the inspection decisions – Right to inviolability of the home – Sufficient strong evidence – Proportionality – Refusal to protect the confidentiality of data relating to private life

Facts

After receiving information about the existence of change of information between several undertakings and associations of undertakings from the food and non-food distribution sector the Commission in the scope of the powers conferred by Article 20, paragraphs 1 and 4 of Regulation (CE) no 1/2003 adopted, in February 2017, several decisions requesting inspections to several undertakings.

Within the scope of those inspections, Commission visited the undertakings offices and obtained copies of the IT records.

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Editorial of December 2020

Alessandra Silveira, Joana Covelo de Abreu and Pedro Madeira Froufe (eUjust Jean Monnet Module Members - https://eujust.direito.uminho.pt). 

Brief insights on e-Justice paradigm and the de facto digitalization of justice in the European Union – answers for the plural crisis (the endemic and the pandemic)?

e-Justice is a paradigm that has been strengthened since the adoption of the latter Council’s e-Justice Action Plan and Strategy for the period of 2019-2023, where digital platforms and technological instruments are perceived as the way to further deepen reciprocal trust in the EU administration of justice (following previous arrangements made under e-Justice Action Plan 2014-2018).

However, as the Commission points out, the “[e]xperience with the COVID-19 crisis shows the need for justice systems [to] function under challenging circumstances” since, insofar, “[e]ffective access to justice in the EU is hampered by paper exchanges and the need to be physically present” and it needs to be scalable to a new development environment as “[d]igital technologies have the potential to make justice systems more accessible and efficient”.

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Summaries of judgments: Presidenza del Consiglio dei Ministri v BV | Cali Apartments

Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
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Judgment of the Court (Grand Chamber) of 16 July 2020, Presidenza del Consiglio dei Ministri v BV, Case C-129/19, EU:C:2020:566

Reference for a preliminary ruling – Directive 2004/80/EC – Article 12(2) – National schemes on compensation to victims of violent intentional crime guaranteeing fair and appropriate compensation – Scope – Victim residing in the Member State in which the violent intentional crime was committed – Obligation for the national compensation scheme to cover that victim – Concept of “fair and appropriate compensation” – Liability of Member States in the event of a breach of EU law

Facts

This request for a preliminary was made in proceedings between the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy) and BV concerning the claim of non-contractual liability brought by BV against the Italian Republic for loss alleged to have been caused to BV owing to the failure to transpose Council Directive 2004/80/EC, of 29 April 2004, relating to compensation to crime victims (OJ 2004, L 261, p. 15) into Italian law.

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European citizenship in the recent JD judgment: on the public reason of the “Union based on the rule of law”

by Alessandra Silveira (Editor) and Nataly Machado (Master's student in EU Law, UMinho)

“This is a time to take part
Time of parted humans (…)
The laws are not enough
The lilies do not arise from the law”
[i]
(“Our time”, Carlos Drummond de Andrade, 1902-1987)

In a poem written during the horrors of the Second World War, the Brazilian poet Carlos Drummond de Andrade depicted one of those historic moments in which people and institutions must take up a political position, to take sides[ii]. At a time when the European Union “is going through an unprecedented public health crisis, to which the Member States must answer by demonstrating equally unprecedented solidarity[iii], in the JD case, the Court of Justice of the European Union (CJEU) was asked about the extent of the social assistance which a host Member State must provide to a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.

This judgment helps us to unravel the public reason of the European Union, i.e., the criteria/standards by which we can seek the legitimacy of the exercise of power. As John Rawls explained, “[t]he idea of public reason specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another. In short, it concerns how the political relation is to be understood[iv].

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The EU and geopolitical Europe: from Belarus to Nagorno-Karabakh

by Sandra Fernandes (Professor at UMinho/Researcher of the CICP)

Two years ago, I commented on the gloomy prospects for the engagement of the European Union (EU) in its Eastern (and Southern) neighbourhood. Looking East, the challenges for the EU were “closely related to the degradation of the relations with Russia and to the unsatisfying deliveries of the European Neighbourhood Policy in the partner countries (Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine)”. Current developments in most of these countries take this observation to a higher level of seriousness. From the societal upheaval in Belarus to the existence of overt violent conflict in Eastern Ukraine and the enclave of Nagorno-Karabakh, the EU sees unrest in all its Eastern vicinity. In parallel, relations with Moscow have not happening in any way that could be considered positive dialogue.

In this context, and considering the democratic revindications of the Belarus people, much is awaited from a big neighbour that defends liberal values and the respect for the United Nations Charter. Brussels is expected to act in order to support the will of an oppressed population, mostly as the use of violence by the Lukashenko regime against its own population has been internationally condemned. So far, the Union has adopted sanctions against individuals directly involved in repression and intimidation and built plans for economic support for a democratic Belarus. The most visible stance consists in the non-recognition of the presidential election results of August 9.

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