Some additional thoughts on metadata retention – points to consider when adopting new legislation [on joined cases C‑793/19 and C‑794/19 (SpaceNet) and the German legislation on this matter]

On By officialblogunioIn EssaysLeave a comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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As we have highlighted in this blog, in the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.  Law 32/2008 transposed the rules of Directive 2006/24, which were declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. This case-law of the CJEU has recently (again) been confirmed in the G. D. judgment, according to which: Article 15(1) of Directive 2002/58 (Directive on privacy and electronic communications), read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union (“CFREU”), must be interpreted as precluding legislative measures which, as a preventive measure for the purposes of combating serious crime and preventing serious threats to public security, provide for the general and indiscriminate retention of traffic and location data (recital 129).

Fortunately, the idea of amending the Portuguese Constitution to overcome the problem of the generalised and indiscriminate retention of metadata – which is, first and foremost, a matter of EU law – is losing steam. But there have been some voices that, surprisingly, suggest a change of course in the case-law of the CJEU and the Portuguese Constitutional Court. It is worth remembering that, in a State governed by the rule of law and a Union based on the rule of law, judicial decisions against which there is no appeal must be respected – whether one agrees with them or not. This is our most precious constitutional heritage. In fact, one could argue that if we had carefully considered the implications and respected the decision of the CJEU in Digital Rights Ireland when it was originally ruled, we could have avoided this entire issue.

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Editorial of May 2022

On By officialblogunioIn Editorials1 Comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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Metadata retention is first and foremost a matter of EU law: a revision of the Portuguese Constitution will not solve the issue

In the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.[1] Law 32/2008 transposed Directive 2006/24, which was declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. Given the resistance of the Portuguese judicial authorities to abide by CJEU case law in this area – or even refer back to the CJEU in order to clarify any remaining interpretative doubt – the result achieved by the Portuguese Constitutional Court was not only necessary but also desirable.

What is the solution when addressing a situation of judicial deadlock such as the one Portugal was experiencing with regard to the generalised and indiscriminate retention of personal data incompatible with EU law? It would be for the Constitutional Court to declare the invalidity of the internal rules incompatible with EU law, due to the violation of the obligations to which Portugal was bound when it joined the EU – in particular, the European loyalty provided for in Article 4(3) TEU, which is reflected in Article 8(4) of the Portuguese Constitution. In this context, it should be noted that the problem was not originally solved by the ordinary courts, but by the independent public administration. Here it is worth highlighting the Deliberation 1008/2017, of the Portuguese Data Protection Supervisory Authority (“CNPD”), which still in 2017 decided to disapply Law 32/2008 in the situations submitted to it for appreciation.

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The material competence of the European Public Prosecutor’s Office and its extension to organized crime as terrorism, human and drug trafficking

On By officialblogunioIn EssaysLeave a comment 
Catarina Vilarinho (Master in EU Law, School of Law, University of Minho)
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1. Initial thoughts

The start of operation of a new European body such as the European Public Prosecutor’s Office, hereinafter EPPO, on 1 June 2021 is a sign that the Member States of the European Union (EU) are increasingly aligning themselves to create a stronger and more resilient Union, perhaps, in this case, due to the need to combat transnational crime, for which we will not find a sufficiently effective solution without strong and structured intervention at European level[1].

In this way, the battlefield is prepared for a battle of equal arms, as cross-border crime can now be tackled by an equally cross-border authority[2].

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Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism

On By officialblogunioIn Essays1 Comment 
Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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Very recently, on March 10, 2022, the Alba Iulia Court of Appeal – Administrative and Fiscal Litigation Section ordered the referral to the Court of Justice of the European Union, based on art. 267 of the Treaty on the Functioning of the European Union, with a new preliminary ruling in close connection with the Rule of law (Case C-205/22, C.D.A.).

In fact, the Romanian court’s request tends to ascertain mainly whether, in the interpretation of the CJEU, the principle of judicial independence enshrined in the second subparagraph of Article 19(1) TEU with reference to Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation, laid down in Article 4 TEU, preclude a national provision, such as that of Article 148(2) of the Romanian Constitution, as interpreted by the Romanian Constitutional Court, by Decision No 390/2021, according to which national courts cannot take account of the provisions of European Commission Decision 2006/928 and the recommendations made in the CVM Reports for the implementation of the benchmarks, on the ground that “national courts are not empowered to cooperate with a political institution of the European Union.”

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The instrumentalization of Human Rights in electoral processes as a marketing tool for the dominance of political elites

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Sérgio Salazar  (Master's Student in Human Rights at the School of Law of the University of Minho)
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States organize themselves by the political, social, and economical domination of their elites. Whether they are democratic, authoritarian, totalitarian, etc. In other words, all individuals are ruled by an elite.[1] For the effects of this article, our focus will be on political elites.

By political elites it is to be understood, individuals that, by their own merit, intellect, economic or social advantages or privilege, achieved or occupy positions of high importance on the political stage. And, due to that, hold a disproportional amount of power over the political direction of the State.[2]  

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Summaries of judgments: Euro Box Promotion | Wiener Landesregierung and Others (Revocation of an assurance of naturalisation)

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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 21 December 2021, Joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, Euro Box Promotion e.a., EU:C:2021:1034

Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects – Binding on Romania – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Fight against corruption – Protection of the European Union’s financial interests – Article 325(1) TFEU – ‘PFI’ Convention – Criminal proceedings – Decisions of the Curtea Constituțională (Constitutional Court, Romania) concerning the legality of the taking of certain evidence and the composition of judicial panels in cases of serious corruption – Duty on national courts to give full effect to the decisions of the Curtea Constituțională (Constitutional Court) – Disciplinary liability of judges in case of non-compliance with such decisions – Power to disapply decisions of the Curtea Constituțională (Constitutional Court) that conflict with EU law – Principle of primacy of EU law 

Facts

The disputes in the main proceedings follow on from a wide-ranging reform in the field of justice and the fight against corruption in Romania, a reform which is at the origin of the judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393) and has been monitored at EU level since 2007 under the cooperation and verification mechanism (‘the CVM’) established by Decision 2006/928.[1]

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Did the court of last resort apply the CJEU preliminary ruling correctly? In case of EU law breach, what to do in the absence of domestic remedy? – A first appraisal of the pending case F. Hoffmann-La Roche and Others

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Cinzia Peraro  (Senior Researcher of European Union Law, University of Bergamo - Italy)
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I. Background

The Italian administrative judge of last resort (Consiglio di Stato) submitted on 21 April 2021[1] a request for a preliminary ruling in the case F. Hoffmann-La Roche Ltd and Others v Autorità Garante della Concorrenza e del Mercato (C-261/21).

This case falls within the long-running Avastin-Lucentis affair that concerns an agreement restricting competition concluded in breach of Article 101 TFEU between certain companies operating in the pharmaceutical sector. The Italian Antitrust Authority prohibited the continuation of the contested conduct and imposed administrative fines. The companies appealed against this measure before the administrative judge, who rejected them. Within the proceedings at second instance, the Council of State referred a number of preliminary questions of interpretation to the Court of Justice. After the preliminary ruling delivered on 23 January 2018 (C-179/16), the Italian administrative judge dismissed the appeals, thus upholding the decision at first instance and, accordingly, the contested measure. However, the parties asked the Council of State to revoke its appeal judgment, alleging, inter alia, a manifest breach of the principles of law affirmed by the Court of Justice in the previous preliminary ruling and asking to make a new referral to Luxembourg. The administrative judge thus suspended the proceedings and, for a second time, referred to the Court of Justice other three questions.

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Editorial of April 2022

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By Alessandra Silveira (Editor)
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Rule of law and the direct effect of the second subparagraph of Article 19(1) TEU (on the case M. F., C-508/19)


Never since the beginning of European integration, was the mission of impartial and independent courts been as important as nowadays, taking into account the war currently being waged. Therefore, it is important to consider that “It is when the cannons roar that we especially need the laws…Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law”, as stated the Advocate General Poiares Maduro in his Opinion in the case Kadi, quoting Aharon Barak, the former President on the Supreme Court of Israel (C‑402/05 P, ECLI:EU:C:2008:11, recital 45).

Last week the CJUE added a piece to the puzzle of a Union based on the rule of law. And do it from the judicial independence in which the effective judicial protection of individuals’ rights under EU law is rooted. More precisely: on 22 March 2022, in the case M. F. (C-508/19, ECLI:EU:C:2022:201), the CJEU has claimed that the second subparagraph of Article 19(1) TEU (according to which “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”) must be regarded as having direct effect.

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The other side of War: disinformation

On By revistaunioIn EssaysLeave a comment 
Ricardo de Macedo Menna Barreto (Guest Professor at the University of Minho Law School)
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Last Tuesday, March 8, 2022, during a debate at the European Parliament in Strasbourg, France, Josep Borrell, EU diplomacy chief, warned that the Russian government will systematically lie about Ukraine’s military situation. At his intervention, Borrell defended that: “(…)accompany Russia’s military campaign in Ukraine, spreading false information among their own population about why this invasion has taken place and what is the situation in Ukraine(…) it not just bombing houses, infrastructure, the bodies of the people; they are bombing their minds, they are bombing their spirits”.[1] The EU diplomacy chief underlines a problem that, in his opinion, is getting worse as our lifetime goes by: the daily battle in the informational field. A battle whose main characteristic is the manipulation of information, a particular form of abuse of power, that is, of social domain. According to Teun van Dijk, manipulation is a form of illegitimate influence, achieved through discourse, in which manipulators make the manipulated believe in (or even do) things that are of special interest to the manipulator (and usually against the interests of the manipulated). In this sense, we can consider discursive manipulation as a complex social phenomenon, involving interaction and abuse of power (domination) between certain groups and social actors. It is also a complex phenomenon, taking into account that it presents itself in two ways: a) as a cognitive phenomenon, since it implies manipulation of the participants’ minds; b) as a discursive-semiotic phenomenon, since it can be expressed in the form of text, conversation or visual messages.[2]   

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Note from MEP José Manuel Fernandes regarding European Parliament resolution of 10 March 2022 on the rule of law and the consequences of the ECJ ruling

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José Manuel Fernandes (Member of the European Parliament)
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The principle of the rule of law is not just one among other basic principles of our democracy. It is more than that: it is a sine qua non condition for the recognition of all other fundamental rights. There is no effective freedom of speech, of association, of conscience, among others, in a community that is not governed by law. Where there is no “rule of law”, there is arbitrariness and lack of security. In such conditions, there is no freedom.

When the “rule of law” is abandoned, explicitly or implicitly, we embark on a path that leads from civility to barbarism, from equality before the law, to the rule of the strongest; from the liberal democratic system built and perfected over the last decades, to alternative, authoritarian regimes that restrict freedoms. Whoever foregoes the “rule of law” necessarily foregoes the fundamental principles on which the Portuguese constitutional order and the European Union Treaties are founded (see art. 2 TEU). Therefore, respect for the rule of law is not an option but an obligation in order to be eligible to be a member of the European Union.

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