The priority of the EU law in Romania: between reality and Fata Morgana

Dragoș Călin (Judge at the Bucharest Court of Appeal and co-president of the Romanian Judges' Forum Association)

1. Are ordinary judges afraid to apply CJEU judgments?

The judgment of the Grand Chamber of the Court of Justice of the European Union, delivered in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România și alții, on 18 May 2021, has caused a real earthquake in Romania.

It was so intense that, in order to maintain the previous state of affairs, the Constitutional Court of Romania immediately intervened, by Decision no. 390/2021, contrary to the CJEU judgment, ordering that national ordinary judges may not analyse the conformity of a national provision, which has already been found to be constitutional by a decision of the Constitutional Court, in relation to the provisions of European Union law.

More specifically, invoking the disregard of the national constitutional identity, “as a guarantee of a fundamental identity nucleus of the Romanian Constitution and which should not be relativised in the process of European integration”, the Constitutional Court of Romania found that “the CJEU, declaring the binding nature of Decision 2006/928/EC [establishing the Cooperation and Verification Mechanism (CVM) for Romania], limited its effects from a double perspective: on the one hand, it established that the obligations resulting from the decision fall within the responsibility of the competent Romanian authorities that have the competence to cooperate institutionally with the European Commission (paragraph 177 of the decision), therefore within the responsibility of the political institutions, the Romanian Parliament and Government, and, on the other hand, that the obligations shall be exercised under the principle of sincere cooperation, provided by Article 4 of TEU. From both perspectives, the obligations cannot be incumbent on the courts, State bodies that are not authorized to cooperate with a political institution of the European Union.” It was therefore established that the “implementation of paragraph 7 of the operative part of the judgment, according to which a court is authorized to set aside ex officio a national provision falling within the scope of Decision 2006/928 and which it considers, in the light of a Court judgment, to be contrary to this decision or to the second subparagraph of Article 19 (1) TEU, has no basis in the Romanian Constitution”.

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What to expect from the European Platform on Combating Homelessness?

Cecília Pires (PhD Candidate at the University of Minho)

On 21 June of 2021, under the fourth Portuguese Presidency of the Council of the European Union (“EU”), its Member States, European institutions, political representatives, homeless people, and civil society signed the Lisbon Declaration on the European Platform on Combating Homelessness, during the High-Level Conference on the European Platform on Combating Homelessness.

The initiative is a result of the orientation at Article 3 of the European Pillar of Social Rights Action Plan, which predicts the urgency of European practices and policies that can promote access to not only the quality and affordable houses but also the essential services. It is aimed to guarantee the human right to adequate housing.

The primary basis of the commitment is: Article 3 of the Treaty on European Union (“TEU”), which mandates the Union to combat social exclusion and promote economic, social, and territorial cohesion; principle nº 19 of the European Pillar of Social Rights (“EPSR”), that addresses the need for action to ensure housing; housing assistance, adequate shelter and services for those in need and people experiencing homelessness; and the principles nº 1 and nº 11 of the 2030 United Nations (“UN”) Sustainable Development Goals (SDGs), which deal, respectively, with the duty to end extreme poverty, including homelessness, and to make cities and human settlements safe, resilient and sustainable with ensuring access to all adequate, safe and affordable houses. 

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Defining disinformation in the EU: a matter beyond linguistics

Miguel Pereira (Master’s student in European Union Law at the School of Law of the University of Minho)

The EU has been a trailblazer in what regards combating disinformation. Through initiatives involving online platforms and drafting of long-term strategies tackling multiple fronts, it has recognized the issue and attempted to address it through non-regulatory policy making. The instruments that have been put forth to combat the phenomenon are often controversial (as is to be expected in all discussions impacting freedom of expression and information) and their effectiveness hard to assess. The debate surrounding these instruments tends to absorb most of the attention, leaving less room to discuss the actual definition of disinformation. This concept is, nonetheless, vital to the successful implementation of policies in this area and to an adequate protection of fundamental rights in the EU, meriting a closer look.

Disinformation is often wrongly equated to, and used interchangeably with, “fake news”. This approach muddles the debate with imprecision and can be particularly pernicious for two reasons. On one side, it does not adequately capture the full scope of the problem which goes well beyond fake news reporting and includes a wide array of:

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Editorial of September 2021

By Tiago Sérgio Cabral (Managing Editor)

On the recent Polish challenges to the primacy of EU Law

1. Some recent progress

On 14 July 2021 the Court of Justice of the European Union (hereinafter, “ECJ”) issued an Interim Order declaring that the Polish State should suspend the activity of the, widely regarded as breaching the principle of the independence of the judiciary, Disciplinary Chamber of the (Polish) Supreme Court. The ECJ’s decision came as no surprise both due to the nature of the Chamber itself and the fact the same Court had already issued a similar order a few months before. One day after, on 15 July 2021, the ECJ would issue a judgment confirming that the Chamber was in breach of Article 19(1) TEU and Article 267 TFEU.

What could be seen as a surprise is the fact that the Polish Constitutional Tribunal, whose level independence could hardly be called adequate after the reforms by the current ruling party, directly challenged (deciding on the previous order) the ECJ. The Polish Constitutional Tribunal argued that the interim measures ordered by the ECJ should be considered as incompatible with the Polish Constitution and therefore not enforced.

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Holiday break

By Editorial Board 

Dear readers,

We will be taking a short 2-week break for holidays. We will resume our regular publishing schedule on 24 August 2021.

In the meantime, we are always open to receiving new academic contributions from our readers. If you have an innovative, dynamic, thoughtful piece that you believe would fit in this blog, feel free to send it to us at: unio.cedu@direito.uminho.pt

If you would like to catch up on some reading on EU matters please check our news, commentsessaysreviews, and case law of the ECJ sections.



Pictures credits: stux.

Editorial of August 2021

By Daniel Silva (Master’s student in EU Law, UMinho) 

The fight against greenwashing in the EU

In January of 2021, the European Commission and national consumer authorities shared their conclusions pursuant to a screening of websites performed to identify breaches of EU consumer law in online markets focused on greenwashing practices[1]. This screening included a variety of online green claims from a wide range of business sectors, including cosmetics, clothing, and household equipment. The results estimated that 42% of analyzed claims were exaggerated, false or deceptive and could even potentially be considered unfair commercial practices under EU law. The sweep also concluded that the practice of greenwashing has been growing as consumers demand in green products also grows.

The term greenwashing was coined by the American environmentalist Jay Westerveld in 1986, at the time regarding the practice of the hotel industry incentivizing the reuse of towels for environmental reasons, when in fact it was a ploy meant to increase their margin of profit[2]. The EU defines greenwashing as “companies giving a false impression of their environmental impact or benefits”. This, however, does not seem to encompass the magnitude and many facets that greenwashing has. There is not a unanimous agreement on a precise definition of the term, however, most definitions agree on two aspects about greenwashing: there is repression on information that suggests the company might be environmentally unfriendly and a strong push on having an environmentally friendly image. Hence, we can see greenwashing as a phenomenon of selective information disclosure on the environmental impact of a certain product or service that does not necessarily correspond to reality or is even false. We can look at greenwashing as somewhat of a marketing strategy, capitalizing on the growing consumer environmental conscience that has been on the rise in recent years. Therefore, the companies that practice greenwashing do not actually have any real environmental concern, focusing purely on economic gain.

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An instrument out of tune: the EU –Mercosur Trade Agreement

Nataly Machado (Master’s student in EU Law, UMinho)

Brazil is one of the countries with the largest environmental heritage in the world. However, in breach of the existing legislation that helps protect the environment, Brazilian biomes are increasingly threatened by the poor political and environmental management of this country in recent years.

If we consider the Amazon biome, the largest tropical forest in the world, which occupies 59% of Brazil’s territory, holds a large part of the available freshwater in the world and is home to the largest number of species of flora and fauna in the world, the numbers of environmental setbacks are alarming (to say the least). For example, in April 2021, record shows that deforestation reached 778 km2, which is the highest rate for that month in the last ten years[1].

The gap between the discourse of goals and commitments to take care of the Brazilian forests and what happens in practice – an old and repeated script in the history of unbridled destruction of the Amazon – has not worked as a strategy to consolidate the trade agreement between the European Union and Mercosur (Argentina, Brazil, Paraguay and Uruguay), which has been the breeding ground for controversy before the final approval of the EU Member States and the European Parliament.

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The Schrems II Judgment: First two investigations by the European Data Protection Supervisor

by Joana Campos e Matos (Senior Consultant at Vieira de Almeida & Associados)

On May 27, 2021, the European Data Protection Supervisor (“EDPS”) announced that it has opened two investigations regarding the use of Amazon and Microsoft services by European Union institutions (EUIs)[1].

In a press release, the EDPS announced the opening of two investigations, one concerning the use of cloud services provided by Amazon Web Services and Microsoft under Cloud II contracts by European Union institutions, bodies and agencies and the other regarding the use of Microsoft Office 365 by the European Commission.

The EDPS underlined that these investigations are part of the EDPS’ strategy for EU institutions to comply with the “Schrems II” Judgement[2].

1. Legal framework for international data transfers by EUIs

According to the Regulation (EU) 2018/1725 [3], international data transfers[4] are only permitted if the third country to which the data are transferred, ensures that the conditions set out in the Regulation are respected, in such a way that the level of protection of natural persons guaranteed by the Regulation is not undermined (Article 46). Thus, data transfers to countries located outside the European Economic Area (“EEA”) can only occur within the strict terms provided for by the Regulation.

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Summaries of judgments: Repubblika v Il-Prim Ministru | Asociaţia «Forumul Judecătorilor din România» and Others

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 20 April 2021, Repubblika v Il-Prim Ministru, Case C-896/19, EU:C:2021:311

Reference for a preliminary ruling – Article 2 TEU – Values of the European Union – Rule of law – Article 49 TEU – Accession to the European Union – No reduction in the level of protection of the values of the European Union – Effective judicial protection – Article 19 TEU – Article 47 CFREU – Scope – Independence of the members of the judiciary of a Member State – Appointments procedure – Power of the Prime Minister – Involvement of a judicial appointments committee

1. Facts

Following the appointment, in April 2019, of new members of the judiciary, Repubblika – an association whose purpose is to promote the protection of justice and the rule of law in Malta – brought an actio popularis before the Prim’Awla tal-Qorti Ċivili – Ġurisdizzjoni Kostituzzjonali (First Hall of the Civil Court, sitting as a Constitutional Court, Malta), with a view, in particular, to seek a declaration that, by reason of the existing system for the appointment of members of the judiciary, as governed by the Constitution, the Republic of Malta is in breach of its obligations under, inter alia, the combined provisions of the second subparagraph of Article 19(1) TEU and of Article 47 CFREU. The constitutional provisions concerned, which had remained unchanged from the time of their adoption in 1964 until a reform in 2016, confer on Il-Prim Ministru (Prime Minister, Malta) the power to submit to the President of the Republic the appointment of a candidate to such office. The candidates must satisfy certain conditions, also laid down by the Constitution, and, since the 2016 reform, a Judicial Appointments Committee has been established, which is charged with assessing candidates and providing an opinion to the Prime Minister. However, Repubblika challenges the conformity of national constitutional provisions concerning the procedure for the appointment of members of the Maltese judiciary with, in particular, the requirements laid down by EU law for the independence of the judicial system of the Member States.

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Editorial of July 2021

By Carlos Abreu Amorim (Professor of Administrative and Environmental Law, UMinho)

European Climate Law – the point of non-return of environmental protection

There are a number of reasons for how significant the European Climate Law (ECL), the final text of which was adopted in May 2021 should be considered. It is not only because it is the first binding legal instrument to come from the European Green Deal (EGD). Not even because of its primary intention: to convert this environmental plan launched by the Commission of Ursula von der Leyen in December 2019 into a fundamental European plan of energy decarbonisation targets and mandatory commitments with the intention of transforming the generality of production processes on the path of climate neutrality.

Even more than the reasons mentioned in previous paragraph, the success of the ECL has now become a sine qua non test for the European Union’s integration project.

European integration has increasing economic, political, geostrategic, ambitions for social achievement and full rights for its citizens. A wide range of purposes and effective peace, happiness and welfare have been achieved like never before in history. Likewise, its path of undisputed success has also seen some setbacks in these and other areas. Nevertheless, more than ever, the scale of the climate emergency and the essential responses that the environmental quality of the planet today requires in terms of public policies clearly outweigh the limited unit of account provided by the unique action of States (even countries that are large in power, population and territory). If it was already a settled truth that there are no nations capable of competing or even subsisting on their own, the deterioration of the planet’s environmental status has raised the need for extended common projects in pursuing sustainable and efficient environmental public policies. Environmental protection is one of the areas of public policies where the natural shortcomings of actions carried out alone within the framework of the old logic of the Nation State are most noted and where the broad integration of these public policies is most necessary. Climate changes will not be able to be fought with success through reactive pipelines, targeted solutions or disunited strategies. Unilateral actions will also not succeed, not even the best designed ones. The urgency of climate responses implies firm resolutions, consistency in the ends, breadth and cross-cutting and supranational scope in public policies. Above all, it requires political choices with a degree of permanence that will only be possible if there is a political consensus and the sharing of these concerns by much of the public.

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