Digital publications and protection of constitutional democracy

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 by Ana Aba Catoira, Professor of Constitutional Law, Universidade da Coruña
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The strong impact that the irruption of digital channels has had on freedom of expression has led them to a reformulation process, because, as Lessig pointed out, “specifically the Internet has helped to show the true meaning of freedom of expression.” This profound transformation translates into a “paradigm shift” or change in the classical conception of the rights of information evident in the sender-receiver relationship of information, since all people are now active subjects in the new communicative process.

The prominence of the Internet and, more specifically, of social networks has been fundamental for the propagation of new “informative” practices that count on the invaluable help of artificial intelligence. This reality, already indicated as “information disorders”, was characterized by false news, post-truth, bots and other phenomena that distort the right to give and receive truthful information and intoxicate public opinion that is no longer free.
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Artificial intelligence and PSI Directive (EU) – open data and the re-use of public sector information before new digital demands

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator

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In Ursula von der Leyen’s speech entitled “A Union that strives for more”, one of nowadays President of the European Commission’s priorities was to establish “a Europe fit for digital age”. In this sense, von der Leyen’s aspirations were to grasp the opportunities from the digital age within safe and ethical boundaries, particularly those deriving from artificial intelligence as “[d]igital technologies […] are transforming the world at an unprecedented speed”. Therefore, the President of the European Commission established that “[i]n my first 100 days in office, I will put forward legislation for a coordinated European approach on the human and ethical implications of Artificial Intelligence”. Last 1st December 2019, the European Commission took office, led by President Ursula von der Leyen. As that time lapse is passing by, there is a need to understand how a Europe fit for the digital age is taking shape. There is to say, has the European Union already made efforts to meet that digital age?

In fact, recalling Digital4EU Stakeholder Forum, held in Brussels, on the 25th February 2016, Digital Single Market was thought by inception in order to materialise it as a primary public interest in action. Concerning digital public services, it was highlighted that some of them were not as transparent as they should and that “Governments need[ed] to look at how to re-use the information already available […] and open up the data they h[ad], while adapting to current trends and making use of public services easy and simple”. In order to do so, this forum established that “Member States should implement the once only principle: once only obligation, re-use of data, making the best use of key enablers and thinking cross-border services from inception”.
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The fundamental right to life in the case Soares Campos v. Portugal: where do we stand?

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by Mariana Alvim, PhD candidate and member of CIDP
▪

Brief description of the Case

The present case[i] concerned the death of Mr. Soares Campos’s son who was swept out to sea while taking part in a gathering related to Praxe[ii] in a beach in Portugal.

Mr. Soares Campos (hereafter “applicant” or “claimant”) lodged an application with the European Court of Human Rights (hereafter “Court” or “ECtHR”) on the 27 May 2016.

The applicant based his complain on the procedural aspect of Article 2 of the European Convention on Human Rights (hereafter “ECHR” or “Convention”), sustaining that there was not an effective investigation capable of establishing the circumstances of his son’s death.

The claimant also grounded his complain in a substantive aspect of Article 2 of the Convention, declaring that his son’s death had been caused by the lack of a legal framework regulating Praxe activities in the Portuguese Universities.
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Editorial of February 2020

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by Pedro Madeira Froufe, Editor
Tiago Cabral, master in EU Law - UMinho
▪


You have been my friend. That in itself is a tremendous thing[i]

1. Throughout these last few weeks, the final steps necessary to complete the Brexit process were taken, in Brussels. On the 24th January, the President of the European Commission, Ursula von der Leyen, and the President of the European Council, Charles Michel, signed the historic “Brexit deal”. To make it fully official, two steps remained: a) approval by the European Parliament and; b) approval by a qualified majority in the Council. Regarding the European Parliament, indeed, this Institution gave its stamp to the deal by a fairly large margin of 621 votes in favour, 49 against and 13 abstentions, on the 29th of January. Lastly, on the 30th of January, the Council adopted, by written procedure, the decision necessary to conclude the withdrawal agreement.

2. We had plenty of delays and attempts to take Brexit over the line but this time, according to all signs, it will really happen. A quick search through our archives will show the Reader that we had plenty of opportunities to write about Brexit (and will probably keep writing during the transition period and beyond), but this editorial is, in itself, a moment of closure.
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Summaries of judgments

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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 of the General Court (Ninth Chamber, Extended Composition) of 24 October 2019 – T 310/18 – EPSU and Goudriaan v European Commission

“Social policy – Dialogue between management and labour at European Union level – Agreement entitled ‘General framework for informing and consulting officials and other servants of central government administrations’ – Joint request by the signatory parties for application of that agreement at European Union level – Refusal by the Commission to submit a proposal for a decision to the Council – Action for annulment – Act against which proceedings may be brought – Admissibility – Commission’s discretion – Autonomy of the social partners – Principle of subsidiarity – Proportionality”.

1 – Facts

On April 10th 2015, the European Commission invited the social partners, on the basis of Article 154(2) TFEU, to comment on the possible direction of EU action to consolidate the Directives on information and consultation of workers. That consultation focused in particular on the possible extension of the scope of those Directives to officials and other servants of public administrations in the Member States.

On June 2nd 2015, the social partners of the Social Dialogue Committee for central government administrations, namely the Trade Union Delegation of the National and European Administration (DSANE) and the European Public Administration Employers (EPAE), informed the Commission, on the basis of Article 154(4) TFEU, of their wish to negotiate and conclude an agreement on the basis of Article 155(1) TFEU.
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Editorial of January 2020

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by Tiago Cabral, master in EU Law - UMinho
▪


Legislative Initiative for the European Parliament: A Wish for 2020

1. It is challenging to argue that the selection of Ursula von der Leyen for President of the European Commission (hereinafter “EC”) was the result, in any conceivable way, shape or form, of a victory by the European Parliament (“hereinafter “EP”) in the traditional power struggle between the Institutions. The spitzenkandidaten (lead candidate), a process which the EP swore that it would uphold, was left completely broken by the selection. It also served as a reminder that the “election” of the President of the EC is, if we rigorous in our analysis, a nomination by the European Council (hereinafter “ECON”) where the EP has veto power but is highly unlikely to use it. In fact, in a remarkable twist of fate, the ECON ended not only choosing the President of the EC but, arguably, also the President of the EP[i]. Even though there are some positive aspects that we should point out, such as the fact that the new EC will be more gender-balanced, that is certainly not enough to counterbalance the fact that no European citizen cast a vote thinking of, let alone desiring, the coming to pass of the current scenario.

2. Indeed, in a purely result-oriented perspective, the new Commission may go on to do a stellar job, thereby acquiring a high degree of output legitimacy. The College of Commissioners 2019-2024 possesses some worthy names, including two former lead candidates in Vice-Presidents Frans Timmermans and Margrethe Vestager[ii]. However, in terms of input legitimacy, the choice and the procedure leading to the current executive, does not strengthen the EU in any manner. Thereby, and until there is a broader reform of the European electoral process, it is necessary to search for other manners to widen the EU’s legitimacy.
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Summaries of judgments

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Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
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Judgment of the Court (Fourth Chamber) of 29 July 2019, Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék, Case C-620/17, ECLI:EU:C:2019:630

Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Directive 92/13/EEC — Right to effective judicial protection — Principles of effectiveness and equivalence — Action for review of judicial decisions in breach of EU law — Liability of the Member States in the event of infringement of EU law by national courts or tribunals — Assessment of damage eligible for compensation

Facts

In 2006, a call for expressions of interest for a public works contract was published in the Official Journal of the European Union. According to the call, a candidate whose balance sheet showed a negative result for more than one of the last three financial years would not fulfil the conditions for economic and financial capacity. Hochtief Solutions, which did not fulfil that criterion, challenged its lawfulness before the Közbeszerzési Döntőbizottság (Public Procurement Arbitration Committee) arguing (i) that that criterion was discriminatory and (ii) that it was not by itself capable of providing information on the financial capacity of a tenderer. The Arbitration Committee partially upheld Hochtief Solutions’ action, ordering the contracting authority to pay a fine, but did not find that that criterion was unlawful.

Hochtief Solutions brought an action against the decision of the Arbitration Committee before the Fővárosi Bíróság (Budapest High Court), which took the view that the results of the balance sheet constituted a suitable criterion for providing information about economic and financial capacity and, accordingly, dismissed the action. Hochtief Solutions then appealed against this judgment to the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal), which decided to stay the proceedings and to submit the request for a preliminary ruling that led to the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643). The Fővárosi Törvényszék (Budapest High Court), which had meanwhile succeeded the Fővárosi Ítélőtábla, having taken account of that judgment of the Court, upheld the judgment delivered at first instance, holding that the criterion used by the contracting authority to assess economic and financial capacity was not discriminatory. The Kúria (Supreme Court) dismissed the appeal lodged by Hochtief Solutions against the judgment of the Fővárosi Törvényszék. The Alkotmánybíróság (Constitutional Court) dismissed as inadmissible the constitutional appeal lodged by Hochtief Solutions against this judgment of the Kúria.

In 2014, Hochtief Solutions filed an application before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) for review of the above-mentioned judgment of the Fővárosi Törvényszék. In support of its application for review, Hochtief Solutions claimed that the question whether the results of the balance sheet were an appropriate indicator for assessing the economic and financial capacity of a tenderer, and the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643), had not, in fact, been subject to any examination. In addition to rejecting Hochtief Solutions’ request to make a reference to the Court for a preliminary ruling, the Fővárosi Közigazgatási és Munkaügyi Bíróság dismissed the application for review, finding that the facts and evidence relied on by Hochtief Solutions were not new, the conditions of national law for the admission of a review appeal not being met. Hochtief Solutions then appealed against the order dismissing its application for review before the Fővárosi Törvényszék, which confirmed the order at first instance.

Hochtief Solutions then brought an action before the Székesfehérvári Törvényszék (Székesfehérvár High Court) seeking compensation for the damages that, it argued, the Fővárosi Törvényszék had caused in exercising its jurisdiction. Hochtief Solutions claims, in this regard, that it had not been given the opportunity, in accordance with EU law, to have account taken of the facts or circumstances that it had put forward before the Arbitration Committee and in the main proceedings, but on which neither that Committee nor the national courts seised of the case had given a ruling. In those circumstances, the Székesfehérvári Törvényszék decided to refer for a preliminary ruling several questions to the Court seeking guidance on, in particular, the principles laid down by the Court concerning, on the one hand, the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, and, on the other hand, the review of national judgments which acquired the force of res judicata.

Decision

As regards, on the one hand, the principles relating to the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, the Court of Justice recalled that that liability is governed by the conditions laid down by the judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513), without excluding the possibility that the State in question might incur liability under less strict conditions on the basis of national law. The Court of Justice also recalled that that liability is not precluded by the fact that the judicial decision in question has acquired the force of res judicata. In the context of the enforcement of that liability, the judgment reaffirms previous case-law according to which it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at last instance committed a sufficiently serious infringement of EU law by manifestly disregarding the relevant EU law, including the relevant case-law of the Court. The judgment also clarifies that EU law precludes a rule of national law which generally excludes the costs incurred by a party as a result of the harmful judicial decision from damage which may be the subject of compensation.

As regards, on the other hand, the second set of questions referred for a preliminary ruling, the Court interpreted EU law as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment. However, when the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final –– where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision –– that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with EU law, as interpreted by an earlier judgment of the Court of Justice.

Judgment of the Court (Third Chamber) of 12 September 2019, Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, Case C-683/17, EU:C:2019:721

Request for a preliminary ruling from the Supremo Tribunal de Justiça – Freedom of establishment – Freedom to provide services – Approximation of laws – Intellectual, industrial and commercial property –  Directive 2001/29/EC – Article 2, c)

The Case C-683/18 dealt with a question referred by the Supremo Tribunal de Justiça (Portugal) on whether the directive on copyright precludes provisions of national legislation whereby that protection is granted if a specific condition is satisfied, namely that designs must, over and beyond their practical purpose, produce a specific aesthetic effect.

The case before the Supremo Tribunal de Justiça (Portugal) concerned a dispute between Cofemel – Sociedade de Vestuário, SA (‘Cofemel’) and G-Star Raw CV (‘G-Star’), two companies which are both active in the sector of design, production and sale of clothing. The dispute concerns compliance with copyright claimed by G-Star, which accuses Cofemel of producing and selling jeans, sweatshirts and t-shirts copying some of its own designs.

The Court of Justice answered the question referred by the Supremo Tribunal de Justiça in the affirmative.

The Court recalled that any original subject matter constituting the expression of its author’s own intellectual creation can be classified as a ‘work’, within the meaning of the directive on copyright. Consequently, a design may also, in a particular case, also be classified as a ‘work’. However, the Court then recalled that the protection of designs, on the one hand, and copyright protection, on the other, pursue different objectives and are subject to distinct rules. Therefore, the Court explained that the grant of protection, under copyright, to subject matter that is already protected as a design must not undermine the respective objectives and effectiveness of those two sets of rules, which is why the cumulative grant of such protection can be envisaged only in certain situations. In this context, the Court explained that the aesthetic effect that may be produced by a design does not constitute a factor that is relevant to the determination, in a particular case, of whether that design can be classified as a ‘work’, since such an aesthetic effect is the product of an intrinsically subjective sensation of beauty experienced by each individual who may look at the design in question.

The Court underlined that the classification as ‘work’ does, however, require that, first, there exists a subject matter which is identifiable with sufficient precision and objectivity, and, second, that subject matter constitutes an intellectual creation reflecting the freedom of choice and personality of its author. As such, the fact that designs produce, over and above their practical purpose, a specific aesthetic effect, does not, in itself, require that such designs can be classified as ‘works’.

 

Editorial of December 2019

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by João Marques, member of the Portuguese Data Protection National Commission
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Portuguese DPA won’t apply the country’s GDPR law

In spite of its nature[i], the GDPR leaves some room of manoeuvre to the Member States. This European legal instrument has even been called a hybrid[ii] between a directive and a regulation, precisely because there is a significant amount of issues where national legislation can in fact diverge from the general solutions the GDPR brings to the table. Although such leeway is not to be misunderstood for a “carte blanche” to the Member States, there is nevertheless a relevant part to be played by national legislators.

From the definition of a minimum legal age for children’s consent to be considered valid for its personal data to be processed (in relation to information society services), which can vary between 13 and 16 years of age, to the waiver on fines being applied to the public sector (Article 83, 7), there is a vast array of subjects left for the Member States to determine. In fact, a whole chapter of the GDPR[iii] is dedicated to these subjects, namely: Processing and freedom of expression and information (Article 85); Processing and freedom of expression and information (Article 86); Processing of the national identification number (Article 87); Processing in the context of employment (Article 88); Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 89); Obligations of secrecy (Article 90) and Existing data protection rules of churches and religious associations (Article 91).

Additionally, matters of procedural law, according to the Principle of Conferral (Article 5 of the Treaty on the European Union) are almost entirely left for Member States to regulate, with few exceptions such as the deadlines and the (in)formalities of the reply to a data subject rights request (Article 12) and, most notably, the one-stop shop procedure (instated in Article 60) and all its related and non-related issues that are undertaken by the European Data Protection Board, the new European Union Body provided by the GDPR (section 3 of Chapter VII).

The task that lied ahead of the Portuguese legislator, concerning the national reform of the Data Protection Law[iv], was therefore demanding but framed in a way that should have helped steer its drafting in a comprehensive and relatively straightforward manner[v].

The legislative procedure in Portugal took some time to be jumpstarted and it wasn’t until the 22nd of March 2018 that a proposal from the government was finally approved and forwarded to the Parliament, as this is a matter of its competence under Article 165(1)(b) of the Portuguese Constitution.
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Dumping in the internal market

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 by Maria Isabel Silva, Judge at the Administrative and Fiscal Court of Braga, Portugal
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The term dumping is associated with competition law and trade policy of the European Union (EU). It takes place when an exporter in a third country sells a particular product into the Union market at a price below its own market price provoking damages to the EU’s industry, which is demonstrated through an investigation procedure currently governed by Regulation (EU) No 2016/1036 of the European Parliament and of the Council.

Dumping is the result of the globalization of international markets, of predatory pricing by exporters that contaminate the internal market and the EU industry, therefore claiming action by the European institutions, Member States and entities such as OLAF (European Anti-Fraud Office), culminating in provisional or definitive anti-dumping duties as a means of counteracting this unfair commercial practice and protecting the interests of the EU industry in relation to the same or similar product. It is in this context that anti-dumping measures on such imports arise within the European Customs Area thus addressing the adverse effects of Dumping to which Regulation No 2016/1036 concerns.
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Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development

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 by José Igreja Matos, President of the European Association of Judges
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1. Stating the obvious

The reference for a preliminary ruling, provided for Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union is an essential instrument for the European Union and, in particular, for national judges.

It is aimed to guarantee the uniform interpretation and application of EU law by offering to the courts and tribunals of Member States a procedure to acquire from the Court of Justice of the European Union a preliminary ruling concerning the interpretation of EU law or the validity of acts adopted by the institutions of the Union.

As easily predictable, the impact of a preliminary ruling procedure in EU legal system is immense also because the rulings of European Court of Justice (ECJ) are assumed as generally binding.

The ECJ itself does not have a power to enforce the accurate application of EU law; this is the reason why national courts or tribunals are obliged to bring the matters in question before the Court as frontrunners of the application of EU law.

The reference for a preliminary ruling is the only way for the national judges to directly convey with ECJ. This procedure helps the ECJ control on how the national courts apply EU law providing the uniformity and certainty essentials to the success of our Union.

Another aspect of major significance could be furthermore underlined: the preliminary ruling also ensures the protection of the rights of individuals. EU laws, in particular the criminal law, fall to be interpreted in accordance with the Charter of Fundamental Rights. The Article 6(1) of the Treaty of European Union affirms: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties”. In general terms, the Charter applies to Member States when they implement Union law (Case C-292/97 Karlsson and Others); therefore, the interpretation of the Charter provisions tends to be, if not now, in the foreseeable future, a fertile ground for the use of the preliminary ruling procedures.

The Member States are bound to respect fundamental rights in judicial cooperation, for instance, if a Member State is extraditing someone to another Member State in accordance with the scheme established by the European Arrest Warrant Framework Decision.
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