Transposition of the Damages Directive in Portugal

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 by Maria Barros Silva, Trainee Lawyer at SRS Advogados

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Directive 2014/104/EU was finally transposed into the Portuguese legal system by Law No. 23/2018 of 5 June, which regulates the right to compensation for victims of infringements to competition law. The Damages Directive was published on 26 November 2014, having a deadline for transposition on 27 December 2016. Portugal was the last Member State to transpose the Directive, almost a year and a half after the deadline, following a call from the Commission to take the necessary steps to ensure its full implementation. Hopefully, this will avoid an infringement procedure from the Commission and any possible fines.

In essence, the content of the Law corresponds to the text of the Directive, although it does go beyond it in certain aspects, with some innovative solutions.

Firstly, the scope of the Law. It applies not only to actions for damages for infringements of European Union competition law (Articles 101 and 102 TFEU, with or without parallel application of equivalent national rules), as laid down in the Directive; but also to actions for damages based on purely national infringements, with no cross-border effects (Articles 9, 11 and 12 of the Competition Law – Law no. 19/2012, of 8 May) or corresponding legal norms in other Member States. Secondly, the law applies not only to actions for damages, but also to other claims based on infringements of competition law.
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Just married, indeed! Same-sex marriage and free movement of EU citizens – the ECJ’s ruling in Coman and Others

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 by Sophie Perez Fernandes, Junior Editor

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In a previous post, a report was given of the Opinion of Advocate General Wathelet, in the Coman and Others case. Based on a literal, contextual and teleological interpretation of Directive 2004/38, in particular its Article 2(2)(a), the Advocate General called for an autonomous and uniform interpretation throughout the EU of the term ‘spouse’ within the meaning of the directive, an interpretation which is independent of sexual orientation. Now that the European Court of Justice (ECJ) has delivered its ruling, the relevant interpretation of the term ‘spouse’ within the meaning of Directive 2004/38 has been made clear.

The Coman and Others case concerns the situation of Mr. Relu Adrian Coman, who holds both Romanian and American citizenship, and who married Mr Robert Clabourn Hamilton, a US citizen, in Belgium in 2010. Since the end of 2012, the couple have taken steps so that Mr Hamilton could, as a member of Mr Coman’s family, obtain the right to lawfully reside in Romania for a period of more than three months. Their request was denied on the basis that, under the Romanian Civil Code, marriage between people of the same sex is not recognised, and that an extension of Mr Hamilton’s right of temporary residence in Romania could not be granted on grounds of family reunion. Thereafter, the couple brought an action against the decision seeking, inter alia, a declaration of discrimination on the ground of sexual orientation as regards the exercise of the right of freedom of movement in the EU. In that dispute, they also argued that the relevant provisions of the Civil Code were unconstitutional, plea on which the Curtea Constituţională (Constitutional Court, Romania) was requested to rule on.
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Editorial of June 2018

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 by Joana Covelo de Abreu, Junior Editor
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E-justice: e-codex as the interoperable solution to a judicial integration?

Digital Single Market has become a new political calling for the EU as it can promote both economic growth and sustainable development.

Some secondary public interests were devised in order to promote it and to achieve its goals. Then, EU is engaged on delivering those solutions and it is doing so through its shared competences [Articles 2(2) and 4(2) of the TFEU].

On the matter, from early on the European institutions devised interoperability as the method to be implemented – as an ICT concept, “the European Interoperability Framework promotes and supports the delivery of European public services by fostering cross-border and cross-sectoral interoperability”, where judicial services are also included. This interoperability scheme was deepened under ISA2 Programme (Decision No. 2015/2044), standing for “the ability of disparate and diverse organizations to interact towards mutually beneficial and agreed common goals, involving the sharing of information and knowledge between organizations, through the business processes they support, by means of the exchange of data between their respective ICT systems” [Article 2(1) of the mentioned Decision].

Taking this method as a referral, both Member States and European institutions have to be able to interconnect their systems to promote data exchange. This definition entails three main dimensions: a technical, a semantic and an organisational interoperability since it addresses not only the electronic solutions that have to be achieved but it will also impact on the way the involved agents communicate and shape the organisations where they are included.
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The first steps of a revolution with a set date (25 May 2018): the “new” General Data Protection regime

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by Pedro Madeira Froufe, Editor
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1. Homo digitalis[i] is increasingly more present in all of us. It surrounds us, it captures us. Our daily life is digitalising rapidly. We live, factually and considerably, a virtual existence… but very real! The real and the virtual merge in our normal life; the frontiers between these dimensions of our existence are bluring. Yet, this high-tech life of ours does not seem to be easily framed by law. Law has its own time – for now barely compatible with the speed of technologic developments. Besides, in face of new realities, it naturally hesitates in the pursuit of the value path (therefore, normative) to follow. We must give (its) time to law, without disregarding the growth of homo digitalis.

2. Well, today (25 May 2018) the enforcement of Regulation 2016/679 (GDPR) begins. Since 25 January 2012 (date of the presentation of the proposal for the Regulation) until now the problems with respect to the protection of fundamental rights – in particular the guarantee of personal data security (Article 8 CFREU) – have been progressively clearer as a result of the increase in the digital dimension of our lives. Definitely, the personal data became of economic importance that recently publicized media cases (for example, “Facebook vs. Cambridge Analytics”) underline. Its reuse for purposes other than those justifying its treatment, transaction and crossing, together with the development of the use of algorithms (so-called “artificial intelligence” techniques) have made it necessary to reinforce the uniform guarantees of citizens, owners of personal data, increasingly digitized.
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Amending social security coordination – challenges of the Regulations (EC) No. 883/2004 and No. 987/2009

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 by Joel Lacerda Azevedo, master in EU Law at University of Minho
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Ensuring the right to social security when exercising the right of free movement has been a major concern of the Member States in the EU. In order to achieve this, it was necessary to adopt social security measures which prevent Union citizens who work or reside in a Member State other than their own from losing all or part of their social security rights, thereby contributing to the improvement of their quality of life.

The EU provisions on social security coordination do not replace national social security systems with a single European system, such harmonization would not be possible since the social security systems of a Member State are the result of long-standing traditions deeply rooted in the culture and national preferences[i]. Consequently, instead of harmonizing social security systems, EU provisions provide for their coordination. Each Member State is free to decide who is a beneficiary under its legislation, what benefits are granted and on what conditions, how those benefits are calculated and what contributions are to be paid[ii].

In order to grant EU citizens the social and health benefits to which they are entitled, coordination between the social security systems of the Member States is necessary. However, the current Regulations (EC) Nº 883/2004[iii] and (EC) Nº 987/2009[iv] no longer reflect the changing national social security systems and the case law of the European Court of Justice.
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MEO – Serviços de Comunicações e Multimedia S.A. v. Competition Authority (C-525/16) case

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 by Nuno Calaim Lourenço, Managing Associate at SRS Advogados
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On 19 April 2018, the European Court of Justice (ECJ) delivered its judgment in the MEO – Serviços de Comunicações e Multimedia S.A. v. Competition Authority (C-525/16) case. The judgment provides important criteria of analysis with regard to the constituent elements of an abuse of a dominant position by discrimination, under the regime of Article 102 (c) of the Treaty on the Functioning of the European Union (TFEU) and advances the proposition that such conduct is not subject to a per se prohibition rule. The judgment clarifies, in particular, that in the case of second-degree price discrimination (directed at customers in a downstream market with whom the dominant undertaking does not compete) an infringement of competition rules only occurs if the discrimination entails actual or potential anti-competitive effects that may distort competition between downstream operators. In other words, it is the effective competitive disadvantage that results from discrimination, which must be demonstrated by reference to the actual circumstances of the case, including the impact on the costs, income and profitability structures of the affected party – rather than the practice of discrimination considered in abstract – which constitutes the criterion for the existence of an abuse. Although it does not create any ‘safe harbours’, this important clarification allows dominant companies greater flexibility in adapting their pricing policies to different market realities and does not coerce them into applying uniform tariffs.
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Editorial of May 2018

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 by Joana Whyte, Junior Editor and Associate Lawyer at SRS Advogados
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The German Court’s decision on Mr. Puigdemont’s EAW and its similarities to a Swiss Cheese

The European Arrest Warrant (EAW) represented one of the most important developments of the Area of Freedom, Security and Justice whose creation and development with the Amsterdam Treaty became one of the European Union’s objectives.

The EAW abolished the traditional process of extradition and made it simpler for European Member States to request the arrest and surrender of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

The EAW is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to in the 1999 Tampere European Council as the “cornerstone of judicial cooperation in both civil and criminal matters within the Union”.

According to the principle of mutual recognition, a decision adopted by a judicial authority of a Member State (the issuing Member State), on the grounds of its internal legislation, must be recognised, accepted and executed by the executing Member States’ judicial authorities, even though the same case, according to the executing Member States’ law, could lead to a different outcome.

The EAW also abolished the principle of double criminality for a list of 32 crimes established in Article 2(2) of the EAW’s Framework Decision (Council Framework Decision 2002/584/JHA).

This is fundamentally where the issue on Carles Puigdemont case arises.
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Migration crisis in the European Union: a factual reflection

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 by Teresa Alves, member of CEDU
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The migration crisis in European Union brings the necessity to reflect its own existence, implying the identification of its origin, i.e., the facts that may justify its emergence. This asks for a spatial and temporal localization and for a contextualization. The challenge in this article is to make a factual reflection to understand the essence of the crisis and consequently its implications in the human rights field as the EU and its Member States are bound to them.

The migration crisis remains and, from my point of view, is, on one hand, reflection of a common European policy in the asylum field, whose configuration always showed controversial aspects. It wasn’t ready, ab initio, to deal with a massive influx of applicants for international protection. On other hand, we are also talking about a crisis of solidarity because the Member States showed that they are not able to find a common approach, to respect the measures adopted by the institutions of the Union and to cooperate with the Member States more desired by the migrants and applicants of international protection. Article 67(2), of Treaty on the Functioning of the European Union (TFEU), binds the “common policy on asylum, immigration and external border control” to the “solidarity between Member States” and to be “fair towards third-country nationals” (stateless persons shall be treated as third-country nationals). Fulfilling this precept, Article 80 determines that this policy is governed by the solidarity principle and by the share of the responsibilities between Member States, including in the financial plan, and if necessary, the acts adopted by the EU in executing it policy “shall contain appropriate measures to give effect to this principle”.

The way that Member States and EU are managing the actual migratory context show their lack of preparation. However, the possibility of tens of thousands of refugees and immigrants to reach the coast of Europe was expected, “the official reports of Frontex and the United Nations agencies told it openly”[i].

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Competition law and tofu – the denomination of products

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 by Filipa Afonseca, member of CEDU
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Competition law does not have a strict goal that is objectively qualifiable and quantifiable. This is an old debate, but it has subtly brought new life to the discussion about the functions of competition law. So, what does it have to do with veganism and vegetarianism? Everything, as shown by the Tofu Town’s ruling of the CJEU, Case C-422/16, of 14th June 2017.

The issue was that the 100% plant-based products of Tofu Town were marketed under the denomination of “milk”, “yoghurt” or “cheese”. The Court of Justice ruled favorably on the German company Verband’s argument that such expressions are reserved for products of animal origin, so that even an auxiliary expression such as “oat milk” or “soy yoghurt” would not exempt the risk of consumer confusion. According to the Court, consumers’ expectations could be affected as well as concluding that the proper identification of a product is a form of fair competition in the European Union.

In fact, this argument is not new. It reminds us of the well-known distinction of whisky and wine in the Port Charlotte case, in which the Court stated that white Oport wine does not run the risk of being confused with whiskey.

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Sitchting Brein v. Ziggo BV and XS4ALL Internet BV – after all the The Pirate Bay does communicate to the public

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by Ana Margarida Pereira, lawyer at CCM and member of CEDU

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The concept of ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society has been much discussed by the Court of Justice[i]. One of the most recent developments, and in my opinion the one which has the most impact in the information society, is the Case C-610/15, Sitchting Brein v. Ziggo BV and XS4ALL Internet BV.

The Court decided that making available and managing on the internet a sharing platform which by means of indexation of metadata relating to protected works and the provision of a search engine allows users of that platform to locate those works and to share them in the context of a peer-to-peer network constitutes a ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC.
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