Summer break

Note by the editors: we will take a short break over the summer and resume blogging in the first week of September.

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Professors Alessandra Silveira and Mariana Canotilho, Sergio Marques e Alexandra Severino.

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Joana Whyte and Professor Alessandra Silveira.

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The voters have spoken. Brexit it is.

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by Catherine Barnard, Professor of European Union Law 
and the Jean Monnet Chair of EU Law 
in the Faculty of Law at the University of Cambridge

The voters have spoken. Brexit it is.

But what does Brexit in fact mean? Pulling up the drawbridge altogether or entering some special relationship with the EU? One possibility would be adopting EU law-lite, through membership of the European Economic Area. The UK would retain access to the single market but would still have to pay a membership fee and probably accept free movement of persons, at least in a modified form. What about free trade agreements like the one the EU has with Canada (which is not yet ratified)? But what would this mean for the UK’s flourishing services sector? There are some unpalatable choices ahead for politicians to make.

Meanwhile, there are some important constitutional questions to be addressed. What is required to trigger Article 50 TEU, the legal provision for a country to leave the European Union? Can the Prime Minister do it by way of the exercise of her prerogative (inherent) powers or will there need to be an Act of Parliament? This issue is currently being litigated in the British courts.

Once triggered, how long will the negotiation process take? The Article envisages two years, but with the possibility of an extension but only by unanimous agreement. How will the negotiations fit in with the elections in France and Germany when their leaders have their eye on domestic matters? Can the UK civil service, 25% smaller than in 2005, cope with the severe strains that Brexit will put it under? And what about the position of Scotland and Northern Ireland?

The Brexit vote was the easy bit. The hard work is about to begin.

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Picture credits: ‘Brexit, Polling station sign for the EU referendum vote’, by Ungry Young Man.

A Perspective on Brexit

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by Elaine Dewhurst, Senior Lecturer in Law, University of Manchester

and Dimitrios Doukas, Reader in Law, University of Manchester

If there are two words that characterise the sentiments of many British-based academics anticipating Brexit, they would be ‘uncertainty’ and ‘sadness’. In the widest sense, there is uncertainty about the future of the EU as a project, and the place of non-British EU citizens living in the United Kingdom. Since the referendum result, the careers and livelihoods of those who benefit from EU research funding and collaboration and/or whose expertise lies predominantly or exclusively in areas of EU law have been marred by fear and doubt. Within the legal profession, for example, UK lawyers face an uphill challenge of seeking admission to a second Bar or Law Society, such as in Ireland, to enable them to continue enjoying the freedom to provide their services within the EU. Within legal academia, there is much speculation surrounding the furtherance of existing research projects, and recent studies suggest that collaborations and funding are at risk of termination as a result of the referendum. In addition, there is uncertainty over whether a post-Brexit Britain will retain a migration stream for academics which would match the free movement principles in terms of its encouragement of cross-border movement. For many, it is not just the professional difficulties that may deter academics from working in Britain. Some also have considered leaving Britain as they fear (or have already experienced) a rise in racism and xenophobia, a problem which may also discourage others from seeking work in Britain. More widely than this, there is fear of increasing and unchecked populist politics and anti-immigrant sentiment in the United Kingdom, an apprehension heightened because of Britain’s unadulterated majoritarian democracy in which EU law with its extensive judicial controls has heretofore performed an enforceable moderating influence. Uncertainty also mars the student experience. British universities have, and continue to, benefit financially and culturally from the many EU students who come to Britain every year to study. Reports suggest that the numbers of EU students applying to British universities has dropped since the referendum, and existing students have had to receive assurances as regards their position. Equally affected by this uncertainty are those British students wishing to participate in Erasmus programmes (a programme which has already benefitted over 200,000 British students).

Continue reading “A Perspective on Brexit”

Editorial August 2016

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by Katarzyna Gromek-Broc, Senior Lecturer, 
Senior Advisor for Academic Matters,
University of York

[The Editorial team is pleased to annouce that this Editorial and following two articles resume perspectives from British schoolars on Brexit].

Brexit

The 23rd of June 2016 marks an unprecedented moment in British and European history.  A moment that everybody feared, but nobody really believed would actually happen. The moment is heart-breaking: British people decided to abandon the European Project. The results of the referendum of the 23rd of June ‘to leave the EU’ – expressed by 51.9% to 48.1% out of 72.2% of the electorate – symbolised the end of an era lasting 44 years of the UK in the EU.[1] Birkinshaw declared that ‘in the morning after the referendum the country was is in a state of shock’, intensified by the initial calculations of the results, which indicated a slightly pro-Europe advantage.[2]  Although the shift in outcome was predictable since the first results available were from the City of London – a bastion of pro-Europe campaign – backed up by some other dynamic cities, including Glasgow, Edinburgh, Aberdeen, Brighton, Manchester and Bristol, with notably high concentrations of intellectual minded adults, as well as young people. The referendum divided Britain geographically and broke the link between the generations. The younger people were in majority in the ‘Remain campaign’.  My region – Yorkshire – sadly voted overwhelmingly to leave.[3] Almost all of the key cities, including Sheffield, Hull, Bradford, Hambleton, North Lincolnshire, Rotherham and Selby, decided to withdraw from the EU, with just a few exceptions, such as Harrogate (51%) and York (58%).[4]

Continue reading “Editorial August 2016”

Sanctions to the anti-trust behaviour: the rethinking

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

It´s not enough for the conducts to be forbidden. The European legislator’s task is much more compelling and challenging because to the European legislator it’s not enough to say “what can’t be done”, he has to be the creator of a coordinated and coherent system of norms in the Member States. The specificity of the regime created will dictate from where these norms start and where they end up. The anti-trust practices, in a internal market logic, are established in the articles 101, 102 and 106, TFEU as prohibited conducts, prejudicial conducts of a European economic project, which shall be conducive to a strong and developed market. However, the European lawmaker could not apply the same logic of cause, effect and consequence that applies to the traditional national systems once these strike back with the set of rules of the market practice – heir to an era when it was every man for himself.

In fact, the European Union has responded with new mechanisms but they are not consistent with integral efficiency of the competition law, in one hand, because in many cases the heavy fines paid by companies outweigh the profit earned by the anti-trust practice or, in the other hand, in case of abuse of dominant position, after the sanction, it converts itself in a long-lasting dominant position. A calculated risk.

Continue reading “Sanctions to the anti-trust behaviour: the rethinking”

Brexit and the European Football Market: The Consequences for the Premier League and the British Players

by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho

The results of the referendum held in Great Britain on the 23rd of June of 2016 shall certainly change the course of history. On this day “Brexit” trumped “Bremain” by 52% against 48% with a turnout of about 72%. And while the results of the referendum are not binding it does seem that the British government plans to respect the will of the voters.

Leaving the EU will affect not only the economy but every single aspect of the lives of the British people, including sports. The British love sports, mainly football, and Britain, more precisely England has one of most competitive football leagues in the world: the Premier League. Nigel Farage a top UK politician and one of the most prominent leave supporters said in April:

What this referendum is about is taking back control of our lives, our laws and our borders”.

However, we must ask ourselves what are the consequences of “taking back our laws and borders” for the Premier League?

Farage is a supporter of Crystal Palace, whose team is composed of 32 players, and 12 of those players are not British. Manchester United, the winner of the FA Cup, regularly plays with 7 non-British players on its line-up even if in total it has more than 50% British players on its roster. How will the Premier League survive after Brexit? Will its teams agree with Farage’s statement “outside of this single market we will be better off” (here)?
Continue reading “Brexit and the European Football Market: The Consequences for the Premier League and the British Players”

The Regulation on EU trade mark

by Maria Miguel Carvalho, Collaborating Member of CEDU

 

The creation of a community trade mark law by Regulation (EC) n. 40/94, of 20 December 1993, in parallel with the protection that trade marks can benefit from at the national level, achieved a massive success as over 100.000 community marks were registered per year. This success was enhanced because their acquisition by any person (natural or legal, including public entities) through a single registration procedure before the OHIM was allowed as well as it assured a uniform protection and produced the same effects in all European Economic Area.

However, after more than 20 years of its approval, and notwithstanding the entry into force of Regulation (CE) n. 207/2009, of 26 February 2009, on the Community trade mark (TMR), which repealed the first one, a reform was needed in order to make the register system more accessible and efficient to the companies – reducing costs and complexity and raising rapidness and legal certainty. Such changes took place with the approval of Regulation (EU) 2015/2424 of the European Parliament and the Council, of 16 December 2015.

This Regulation constitutes – in line with the Directive (EU) 2015/2436, of the European Parliament and the Council, of 16 December 2016 – the largest and most important alteration to the European trade mark system, having significantly modified the Regulation (EC) n. 207/2009, of 26 February 2009.

Continue reading “The Regulation on EU trade mark”

“Out is out” (including in relation to the Mediterranean diet…). On the Article 50 of the European Union Treaty in the light of the federative principle of European loyalty

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by Professor Alessandra Silveira, Editor

Since Abraham Lincoln faced the hardest constitutional crisis of the USA (War of Secession, 1861-1865) the modern legal theory of federative systems had taken for granted that the hypothesis of secession was repelled. And then the Canadian Supreme Court reframed the data. In the country, in 1995, a referendum was called on the unilateral declaration of secession of Québec. The proposal of separation was reject by a short difference – 50,58% of the votes in a turnout of 94%. Following the referendum the federal government appealed to the Supreme Court to know if a unilateral secession, addressed in a popular consultation not approved by the remaining States, would violate the Constitution. The Supreme Court ruled that a unilateral secession with those features would infringe the Constitution. However, if in a different referendum, when answering a “clear question”, the “clear majority” of the Québécoise casted an unequivocal will of not integrating Canada anymore, then the remaining States and the federal government would be bonded to negotiate with Québec the conditions for its withdrawal because unwritten constitutional principles determined it (Reference re Secession of Quebec, [1998] 2 S.C.R. 217). In the aftermath the federal government passed in the Canadian Parliament “clear” rules tending to regulate and calculate the “price” of withdrawal, especially to safeguard the legitimate interest of the remaining States and their population – as a result, Québec still integrates the federation. Punch line: in a federative system there are neither free lunches nor free exits.

Continue reading ““Out is out” (including in relation to the Mediterranean diet…). On the Article 50 of the European Union Treaty in the light of the federative principle of European loyalty”

Case law Pebros Servizi concerning the European enforcement order for uncontested claims – The enforcement procedure as the next phase… Novelty or reality?

 

by Joana Covelo de Abreu, Junior Editor
  1. The dispute in the main proceedings

Pebros Servizi sued before an Italian national court several companies and, among them, we could find Aston Martin. However, the latter was duly noticed to present itself in court allowing it to participate in those proceedings, what did not happen. Aston Martin was condemned in absentia to pay to Pebros Servizi the total amount of 18.000,00€ “together with interest at the statutory rate running from the publication of the judgment until payment in full and the legal costs, comprising EUR 835 for sundry expenses and EUR 9 500 for professional fees, plus VAT and other incidental social security expenses under national law”[i].

Aston Martin did not present any appeal and that judgement became final.

On October 2014, Pebros Servizi asked that Italian court to certify that decision as a European enforcement order. However, that court expressed its doubts concerning using Regulation 805/2004 enforcement order in such a case. Those doubts derived from the fact that, in Italian law, a judgment made in default of the defendant does not mean the latter recognises the facts brought against him in the litigation. So, national court had doubts if “a judgment in default [might] be regarded as a judgment for an uncontested claim”[ii]. In this sense, national court called upon two doctrinal positions: 1) One, based on national law, where a default procedure does not amount for an uncontested claim; 2) Another, where “that concept of ‘absence of contestation’ is defined autonomously by EU law and covers also a failure to appear during proceedings”[iii].

Continue reading “Case law Pebros Servizi concerning the European enforcement order for uncontested claims – The enforcement procedure as the next phase… Novelty or reality?”

Conference and call for papers

 

In 2016 Portugal celebrates 40 years of its Constitution and 30 years of accession to the European Union. In order to join the commemorations and to debate those landmarks, the Centre of Studies in EU Law (CEDU) of University of Minho alongside the Representation of the European Parliament in Portugal distinguish the milestones by promoting the conference “40/30: from the constitutional project to the integration project – hopes, scepticism and reality in a political-constitutional debate” which will be held at the Law School of UMinho on 28th October 2016. The organizers’ partnership intends to perceive the path made upon these 40 years of Portuguese Constitution, 30 of which in interaction with the European project: what was meant originally has or has not been accomplished? Which adaptations, where has it lead us, where are we headed?, questions asked in an intergenerational perspective and in dialogue between scholars and MEPs.

Accompanying the conference, UNIO – EU Law Journal of CEDU issues this call for papers on the theme of the event seeking contributions from EU Law, Constitutional Law, International Law, Political Sciences, etc. for a special edition. The submissions are open until 1st of October.

The Editors and the Board encourage submissions and remind that the editorial policies and processes of UNIO apply.

The conference program will soon be made fully available.

Continue reading “Conference and call for papers”