The European Pillar of Social Rights: a first step in the right direction or rather a palliative, cosmetic care? Some critical remarks from a constitutional perspective

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 by Pietro Masala, Postdoctoral Research Fellow (García Pelayo), CEPEC

On 17 November 2017 the European Pillar of Social Rights (EPSR), a document proposed by the Juncker Commission expressing “principles and rights essential for fair and well-functioning labour markets and welfare systems in 21st century Europe” (as said in its Preamble), was solemnly proclaimed by an interinstitutional conference in Gothenburg, in the framework of a “Social summit for fair jobs and growth”. It is, of course, too early to evaluate the concrete impact of this document on the development of the social dimension of the European Union. Nevertheless, it is possible to examine its contents and the acts which prepared its proclamation (namely, a Commission communication establishing the EPSR and a Commission recommendation setting the EPSR principles and rights[i]), in order to express some essential critical remarks.These shall help understand the EPSR’s constitutional meaning and implications in the present phase of the integration process.

It is widely recognised that, during the last decade, the financial crisis and, especially, the new economic governance which has been introduced and implemented in the eurozone as a response, have significantly increased the pre-existing “constitutional imbalance between ‘the market and ‘the social’ in the European Union”[ii] . The asymmetry between these two components was justified, at the early stages of the integration process, by a clear separation of powers and tasks between the European Communities (the market) and the Member States (the social), but it is no longer tolerable in the present Union. Both external and internal factors affect the sovereignty of the Member States in defining and implementing their social and employment policies, in a way that has reduced substantive equality and internal solidarity in European societies. On one hand, the new context of globalization implies new challenges for the “European social model”; on the other hand, the development of the European single market and of the Economic Monetary Union has had a strong impact on national welfare states.These factors as a whole induce to believe that the conferral of more extended powers (and resources) to the Union, allowing the partial federalisation of the social domain, is desirable, as it would entail a more effective protection of social rigths, through a fair cooperation between the Union and the Member States.

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Editorial of January 2018

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by Sergio Maia, Managing Editor


The European Pillar of Social Rights has taken the first steps – and now how far will it make the Union walk?

One year after the end of the public consultation period of the European Pillar of Social Rights (EPSR) that preceded its formal presentation and adoption, it is an inviting, seemingly appropriate time to remark its concrete meanings and consequences. The EPSR and its political and legislative initiatives (such as the adoption of a clarification of the Working Time Directive or the proposals for a Directive on Work-Life Balance and for a Directive on Transparent and Predictable Working Conditions) have started to redesign the materialisation of the social model underlying the public reason of the Union. Those public reason and social model are embedded in Article 3(3), TEU; Article 9, Article 151, TFEU, just to name a few.

According to that set of rules, the Union is bound to full employment, social progress, the fight against exclusion, the promotion of social justice, social protection and cohesion. To sum up, in other words, there exists, I believe, a social democratization rationale behind the objectives of the integration to which the exercise and the enjoyment of citizenship rights and fundamental rights protection are directly associated. This social democratization drives (and must do so) the fulfilment of the economic freedoms as well as the rights enshrined in the CFREU. Without social democratization, the European citizenship and its fundamental rights are worth very little. The case-law of the CJEU in Dano, Alimanovic and Commission v. UK proves just that.

The two aforementioned spindles are in the core of the Union based on the rule of law as the fruition of those rights – i.e., social model – shapes the purposes of the public reason of the European polity. Then, how does the Pillar promote the European social model?

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E pur si muove! After all, we do have a highest level of protection of fundamental rights… (about the Taricco saga)

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor

On 5 December 2017, the European Court of Justice (ECJ) ruled again on the Taricco saga. The interpretation set out in the judgment in Taricco I gave rise to heated debate, particularly within the Italian legal community, since the compatibility of the interpretative solution set out therein was called into question in the light of supreme principles of the Italian constitutional order, particularly the principle of legality in criminal matters [Article 25(2) of the Italian Constitution], the disregard of which would allegedly violate the constitutional identity of the Italian Republic.

At the origin of the judgment in M.A.S. and M.B. (or Taricco II) is thus the interpretation laid down in Taricco I regarding Article 325 TFEU, the provision concerning the obligations on Member States to combat fraud affecting the financial interests of the Union. In Taricco I, the ECJ held it to be incompatible with EU law, in particular with Article 325 TFEU, a national regime on limitation periods for criminal offenses which has the effect that facts constituting serious fraud affecting the financial interests of the Union would escape criminal punishment, in the framework of a de facto impunity.

The contentious point was that, within the Italian legal system, and with support of constitutional case-law, the legislation governing limitation periods of criminal offences is characterised as being substantive (rather than procedural) in character and is, therefore, subject to the principle of legality in criminal matters laid down by Article 25(2) of the Italian Constitution. Since the Italian constitutional order would ensure (according to the Italian Constitutional Court) a higher level of protection of fundamental rights than the one guaranteed under EU law, the Italian Constitutional Court held that both Article 4(3) TEU (respect for national constitutional identities) and Article 53 CFREU (principle of the highest level of protection of fundamental rights) would allow national courts not to comply with the obligation laid down by the ECJ in Taricco I (see commentary here).

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Editorial of December 2017

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by Alessandra Silveira, Editor
and Joana Abreu, Junior Editor


European Public Prosecutor’s Office, fundamental rights and preliminary reference: disquietudes and expectations

With the establishment of the European Public Prosecutor’s Office (EPPO) [i] (in the different Member States that will adhere to the respective enhanced cooperation), the European citizens will be in touch with national and European authorities regarding the criminal prosecution in the scope of the offences against the Union’s financial interests. This scope may eventually be enhanced  to include serious crimes having a cross-border dimension through a unanimous decision of the European Council in accordance with Article 86(4) of the TFEU. The members of EPPO (European Delegated Prosecutors) are active members of the national Prosecutor’s Office in each Member State to whom will be granted powers of investigation and prosecution with independence. When investigating and prosecuting criminal cases under the competence of EPPO they shall i) act in the interest of the Union as a whole, ii) act exclusively in representation and on behalf of EPPO in the territory of the respective Member State and iii) neither seek nor take instructions from any person external to the EPPO.

It is, therefore, a sort of hybrid institution, completely new in the European structure. This is why it is important to consider the indispensable institutional conditions to its (political and legal) control in the light of the fundamental rights protected by the European legal order. Well, the more the borders between national and European competences are diluted harder it becomes to define the applicable standard of fundamental rights protection in whichever case in question (i.e., the level of protection). According to the division of competences expressed in Article 51(1) of the CFREU, the field of application of the Charter depends on whether or not EU law is being applied in the case. In other words, in the field of application of the EU law the applicable level of fundamental rights protection is the one of the Union, but out of the scope of the EU law the applicable level of protection shall be the one of the national constitution. Hence, to apply the level of protection resulting from the CFREU we must know, beforehand, if the solution of the case falls under the EU law. Indeed, if it was not already difficult to decipher the “riddle of the Sphinx” of the scope of application of the CFREU in the absence of EPPO’s hybridism, everything becomes more complex and sophisticated with it.
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Reclaiming the Truth: the role of European citizens on countering fake news

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by Rui Vieira, master's student in EU law at University of Minho

The epidemic of unrestrained fake News on social medial in the latest years has revealed itself to be a major concern for the European democratic culture. The same way there is a massive amount of information circulating, there is also a massive amount of misinformation and sensationalistic, unreliable information flowing through Social Networks. The repercussions and negative effects on public opinion are varied. From social tension to the promotion of demagogy, uncertainty and pessimistic skepticism on the public opinion.

Facing such global-scaled problems, the Commission wants its citizens to feedback on fake news and online disinformation. A Public consultation on the ways to tackle this online problem is available between November and February.

The demand for possible regulation for this problem came after a 2017 Resolution by the European Parliament calling on the Commission to analyse in depth the current situation and legal framework with regards to fake news and to verify the possibility of legislative intervention.

In fact, the advent of Social Networks did nothing more than to increase older concerns. In the last century, it was already discussed if there is a conceptual distance between news and the truth and if a democratic public opinion is compatible with a free press and the search for the truth[i].

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The concept of undertaking strikes back – the activity of religious orders and congregations

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by Ana Filipa Afonseca, member of CEDU

The Court of Justice, final interpreter of the Treaties, has dealt with a broad spectrum of concepts of undertaking, making certain decisions somewhat perplexing to lawyers unsuspicious of the particularity of the concept of undertaking in the context of competition rules. These decisions are still the living proof that competition is at the heart of legal (and political) modeling process of European integration.

On the other hand, regarding the field of state aids, in the Congregación de Escuelas Pisa’s ruling, Case C-74/16, 27th June 2017, the Court of Justice had the important and difficult task of deciding whether the activities carried out by Spanish religious establishments were of economic nature. With this assumption, the Congregación de Escuelas Pías had received an illegal fiscal exemption and this measure is a forbidden state aid in the terms of the Article 107(1).

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Competition, coin mining and plastic memories: why the EU should watch the Web Summit carefully

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by Tiago Cabral, member of CEDU

After the overall success of the 2016 edition – with a few exceptions like the failing Wi-Fi[i]– Lisbon hosted for the second time “the largest tech conference in the world”. We are obviously referring to this year’s edition of Web Summit which brought about 60.000 attendees from more than 170 countries to the Portuguese capital. This event is obviously significant to the Portuguese economy with an investment of about 1.3 Million Euros originating an expected return of about 300 Million. But there is more to Web Summit than the number of attendees or its effect on the Portuguese economy (even if both are relevant), it offers a look into the future and the future brings a plethora of complicated legal and political challenges. Some of these challenges demand a supranational response and the EU should watch very carefully the trends coming out of Lisbon. In the following paragraphs, we shall highlight a few topics to illustrate.

1. “The Digital Single Market has become a new political and constitutional calling for the EU” and it cannot work in the absence of healthy competition. The European Commissioner for Competition’s “clearing the path for innovation” speech[ii] (7th November) – even if its content or delivery certainly did not impress us – made clear how seriously the Commission is taking this issue. American Tech Giants dominate the EU’s market and without proper competition enforcement, European companies may fall prey to anti-competitive behaviour before they have the chance to get a foothold. The speech also made a few interesting points about the growing importance of big data in competition and about trust in competition. However, it had a rather uncomfortable “Google paranoia” emanating from it. The 2.42€ billion fine against Google for breaching EU antitrust rules was historic – whether or not we agree with it –, but so were, for example, Microsoft v. Commission (2007) and the 561€ million fine against Microsoft (2013) for non-compliance with browser choice commitments. Yet, by name the Commissioner only referred to Google. There was a reference to the issue of special tax treatment, which immediately brings the controversies with Apple and Amazon[iii] to mind, but the companies were not named. Since there was no time to properly explain the details of the referred antitrust proceeding – or of the other two ongoing antitrust proceedings against Google, regarding AdSense and Android – the speech did nothing to further inform the audience on this issue and only left the feeling that there is a fixation on Google in the Commission. Interestingly, the 6th November intervention by the Commissioner where she was interviewed by Kara Swisher suffers no such issues. The interviewer asked the right questions, what companies are breaking the rules, what is the Commission’s reaction and what are the consequences. There was no singling out of a company with references to Google, Amazon, Apple and Facebook, no attempts to explain the complicated reasoning behind the proceedings in a few short minutes, the comparisons to the US also added value to the interview.

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Rose-tinted glasses might prove fatal: populists and their performances after the 2017 Dutch general election

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by Rita Costa and Tiago Cabral, members of CEDU

Seven months have passed since our submission to the 2017’s edition of the Professor Paulo de Pitta e Cunha Award regarding the European Union’s existential crisis. In our paper, we stressed that the year of 2016 was marked by a rise of populism and isolationism around the world, and addressed that the European Union must reform itself in order to regain the citizens’ trust and reinforce democracy, even if doing so entails a revision of European Constitutional law.

In one of the paper’s final remarks, we wrote:

On May 2017, the French go to the polls in the Presidential elections. The eurosceptic candidate Marine Le Pen is an almost certain lock for disputing the second round of the elections. Even if it is unlikely that she will ultimately achieve victory, the same was said of Donald Trump. In the Netherlands, Geert Wilders’ PVV might become the largest political party in the Tweede Kamer (lower chamber of the Dutch parliament). While it is almost certain that PVV will not be able to form a government because they will not achieve the required majority and do not have the support of other parties, such a result should be cautiously noted. In Germany, the dispute will be between Merkel’s CDU and Schulz SPD, none of them being an immediate risk to European integrity. Even so, AfD’s evolution in recent years is worrisome . (…) The political forces that wish for the disintegration of the EU have a lot of defects, but no one needs to tell them ‘di qualcosa, reagisci!’”

Now it is time to draw up the second chapter with an update on the 2017 European political landscape.

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Editorial of November 2017

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by Sophie Perez Fernandes, Junior Editor


The forest fires in Portugal and the EU

The Author of this post took the photo above during a common episode of her daily life, returning from work. While I was waiting for someone I stared at the landscape around me. Sadly, I realized, on that sunny, bright and warm October day, that the surrounding green I’d been accustomed to had partially disappeared. And I photographed it. I will not bother the reader with the reasons – these are personal and subjective. That is not the case of the reasons for its disclosure with this post.

The place photographed will not be revealed. The place is not the point – and not being the point, it is the point. It could be anywhere. That landscape is not only the one I photographed in that spur of the moment. Anyone present in that place, at that moment, was contemplating the same landscape – it was not a matter of me, but of us. And similar landscapes are, sadly, scattered through Portugal today and will remain for a long while – us is so much bigger than that place, at that moment.

And because the forest fires that ravaged Portugal in 2017 are so much bigger than that place (Portugal), at that moment (2017), the European within me was on alert as well.

The forest fires that occurred in Portugal were impressive not only because of their dimension and their impact, but also because of the unusual period of recent occurrences. In addition to the heavy human losses – the number of fatalities tragically exceeds a hundred – and to the equally heavy ecosystemic damage – associated with the loss of biodiversity always linked to any phenomenon of forest degradation/destruction –, the anomalous character of the forest fires recorded on October 15 and 16 also generates awareness to the reality of climate change.

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The ultimate guide(line) to DPIA’s

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by João Marques, member of the Portuguese Data Protection National Commission and member of CEDU

Although merely advisory in its nature, the Article 29 Working Party (WP 29) has been a major force in guaranteeing a minimum of consistency in the application of the Directive 95/46/CE, allowing member states’ public and private sectors to know what to expect from their supervisory authorities perspectives on various data protection subjects. Its independence has played a major role in the definition of its views and opinions, focusing on the fundamental rights at stake and delivering qualified feedback to the difficult issues it has faced.

The new European legal framework on data protection has produced a step forward on this regard by instituting a new formal EU Body – the European Data Protection Board – EDPB (Art. 68 of the General Data Protection Regulation – GDPR). This will represent a significant step forward in the European institutional landscape concerning data protection but it does not mean that the WP 29 is already dead and buried, quite the opposite.

As it is already known, the EDPB will have far reaching powers designed to guarantee consistency and effectiveness to the rules of the regulation across the EU. One of the said powers translates into the issuance of guidelines in several matters [Art. 70 (1)(d), (f), (g), (h), (i), (j), (k), (m) of the GDPR].

The problem is, of course, that this new EU Body will only exist from May 2018 onwards, leaving a gap of two years (from May 2016, when the regulation entered into force) to be filled by the current legal and institutional frameworks. As such the WP29 took it into its hands to materialize these particular tasks of the EDPB during this transitional phase, fully aware that the guidelines it may issue for the time being could still be rebutted by the EDPB members. Nevertheless this is a calculated risk as the members currently sitting in the WP 29 will almost certainly be the ones who’ll be sitting in the EDPB.

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