On the world of yesterday, witches and ghosts

On June 17, 2016June 19, 2016 By officialblogunioIn NewsLeave a comment

by Professor Alessandra Silveira, Editor

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(text in the memory of Jo Cox, British MP, 41, upholder of refugees’ rights and the continuation of United Kingdom in the EU, who was appallingly killed on 16^th June).

“Jo Cox’s murder was a senseless attack on democracy itself“, via The Telegraph.

“Jo Cox MP death: David Cameron and Jeremy Corbyn unite in tributes“, via BBC.

“Jo Cox death: ‘The well of hatred killed her,’ Corbyn says – latest updates“, via The Guardian.

“Jo Cox’s tragic death may halt pro-Brexit momentum, analysts say“, via CNBC.

“The price of caring“, via The Economist blog.

“Jo Cox’s death should make us reflect on our polluted, abusive politics“, via Mirror.

“After Jo Cox’s Killing (…)“, via The Wall Street Journal.

Before the adversities we have been facing in Europe lately – financial speculation, migratory boom, terrorism, Euroscepticism, populism, intolerance, Brexit, etc. – sometimes it seems it could not get worse. A sort of perfect storm, as it is said. But it can always get worse. In fact, it was worse in the past. We can acknowledge that by simply reading Stefan Zweig’s memoirs, The World of Yesterday. In it the author gives us a nostalgic picture of a missing world, the one of Europe pre-1914 which is opposed to heinous period of the wars, interleaved by a short time of peace and hope in the European renaissance. It was during the exile in England, and then Brazil, where the Jewish Austrian wrote his memories – as well as the iconic Brazil, land of the future, in deep demonstration of gratitude to the country that hosted him.

At this time of profound consternation due to the harrowing assassination of Jo Cox, this “world of yesterday” described by a war refugee in the end of the 1930s proves that there is still space for a normative approach of the European integration process, inclined to create solutions that help neutralize the fragmentation forces against which the Union is being confronted, and mobilize its cohesion forces.

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Fundamental freedom and names in the EU

On June 14, 2016 By officialblogunioIn EssaysLeave a comment

by George Rosa-Acosta, student of the Master's degree in EU Law of UMinho

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Case law from the European Court of Justice demonstrates that in the domain of establishing identity and citizenship, the names of natural persons are paramount. Naming practices straddle public and private law: they are the means by which a state identifies its citizens and by which those citizens embark upon most joint activities with others. In order to rationalise these practices, European Union harmonisation through its long historical arc — helped along copiously and often quietly by the ECJ — involves an evolving system of principles for answering the politically charged imbroglios provoked by disputes over naming rights and formulae. Three cases are of singular importance in defining this emerging EU naming regime: Konstantinidis v Stadt Altensteig, Garcia Avello v Belgian State and Sayn-Wittgenstein v Landeshauptmann von Wien. These cases demonstrate that the ECJ is willing to oblige Member-State liberalisation in conformity with the emerging EU personal nomenclature regime, but not at the point of surrendering bedrock cultural-juridical values that are consistent with the progressive ideology of EU human rights principles.

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Subsidiarity, democratic deficit and posting of workers

On June 10, 2016June 10, 2016 By officialblogunioIn CommentsLeave a comment

by Professor Alessandra Silveira, Editor

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The Lisbon Treaty introduced new contents to the role of national parliaments in the EU decision making process alongside the respect for the principle of subsidiarity by the European institutions. According to article 5, No. 3, TEU under the scope of non-exclusive competences, the Union only intervenes if the objectives of certain action (i) cannot be sufficiently achieved by Member States (efficiency criterion) and (ii) can be better achieved by the EU due to its dimension or intended effects (added value criterion).

So, since the entry into force of the Lisbon Treaty, Protocols No. 1 and No. 2 annexed to the treaties allow that national parliaments evaluate the compliance of the European draft legislative acts with the principle of subsidiarity – and if they conclude that there is incompliance, the respective reasoned opinion shall address this understanding. Under the ordinary legislative procedure, if the reasoned opinions represent at least a simple majority of the votes allocated to the national parliaments, the European Commission proposal must be reviewed. It can be amended, withdrawn or sustained (Article 7, No. 3, Protocol No. 2).

Nevertheless, it is important to test the national parliament’s arguments in order to confirm if (i) they have legal grounds to claim the infringement of subsidiarity and (ii) the result of such parliamentary intervention can be regarded as positive to the EU legal system as a whole. Even though this proposed exercise does not compromise, theoretically, the democratic relevance of national parliament’s participation in the EU’s decision making process, it can point out some fragilities concerning (i) the appreciation of the European integration process by national parliamentary authorities and (ii) the adequacy of the EU democratic deficit narrative and the instruments created so far to face it.

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National Parliaments’ yellow card to posted workers reform

On June 10, 2016June 10, 2016 By officialblogunioIn NewsLeave a comment

Social rights are at the core of current debates on the EU, from budgetary deficit limits to mechanisms fighting unemployment, passing by the “Brexit/Bremain” referendum.

Recently, some national parliaments have expressed their opinions about one relevant aspect to the social model of the EU, the posted workers’ rights which may undergo a revision after the Commission issued a proposal.

Here is a sample of how the parliaments consider the matter.

“Eleven EU member states have shown a yellow card to the European Commission over its recent proposal to warrant equal pay to posted workers“, via euobserver.

“According to several European diplomats, the national parliaments of 11 countries, including Poland, Denmark, the Czech Republic and Slovakia, have enough votes under EU rules to trigger the “yellow card” procedure against the Commission’s revised new text on so-called “posted workers. It would be only the third time the yellow card procedure has been used since it was set up under the Treaty of Lisbon“, via politico.eu.

“An attempt by the European Commission to revise the contentious Posted Workers directive is likely to fail, as the national parliaments of at least ten member states from Central and Eastern Europe are reported have used a yellow card to stop the legislation“, via euractiv.

Google vs. EU antitrust proceedings

On May 18, 2016June 10, 2016 By officialblogunioIn NewsLeave a comment

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

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In Portugal (and not only in Portugal), the prefix “Dr.” is usually attached to the name and confers a kind of inherent credibility to someone, as form of courtesy, sometimes for the sake of politeness even if it’s used wrongly. All over Europe, Google is referred as the most powerful search engine on the internet. Some may even address it as “Dr.”. Is it possible that we’re the main contributors for its overvaluation in the market? The fact is that Google acquired a dominant position in the market. But is this a mere case of success?

The European Commission believes that this is not the case and has accused Google of abusiving its dominant position for imposing to the device manufacturers and mobile service providers the installation of Google’s search engine by default on all the devices, through payments and exclusivity contracts.

In fact, competition between other search engine providers on the market and Google is practically nil, in accordance with the definition of a free market as one in which companies, independent of one another, operate in the same business sector and compete with each other to attract consumers. In other words, in free market each company is subject to the competitive pressure of one another. Not dispelling that the market power will always be regarded as a sort of cat and mouse game, and naturally, someone has to be the cat, that is the natural order of the market.

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Directive (EU) 2016/343 of the European Parliament and of the Council of the European Union, from March 9th 2016, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings

On May 13, 2016June 10, 2016 By officialblogunioIn EssaysLeave a comment

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by Joana Whyte, Junior Editor

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On March 9^th 2016, the European Parliament and the Council of the European Union adopted the Directive (EU) 2016/343 of the European Parliament and of the Council of the European Union on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

This Directive establishes rules on the presumption of innocence, burden of proof, the right to remain silent and the right not to incriminate oneself, the right to be present at trial and the right to a new trial.

Such a Directive is another step towards the establishment of an Area of Freedom, Security and Justice as delimited in the Treaty of the Functioning on the European Union. This Directive was adopted after three other Directives on procedural rights in criminal matters have been adopted. The said three Directives – regarding the right to interpretation and translation in criminal proceedings; the right to information in criminal proceedings; and the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty – are a concretization of the Resolution of the Council on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings[i].

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Pharmaceutical Crime and E-Commerce: a Portuguese Overview

On May 12, 2016June 10, 2016 By officialblogunioIn CommentsLeave a comment

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by João Fidalgo Jorge, Lawyer and Collaborating Member of CEDU

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In 2003, the European Court of Justice declared that a comprehensive ban on the mail-order sales of freely available pharmaceuticals was contrary to European Law (Case C-322/01, 11 December 2003 – the so called “Doc Morris decision”). In reaction to this decision, the German parliament went beyond the court’s ruling, and the Statutory Health Insurance Modernization Act 2004 (“GKV-Modernisierungsgesetz vom 01.01.2004”) opened the door to mail-order and online sales of prescription drugs as well. Some 10 years later, the Research Project on Internet Commerce and Pharmaceutical Crime (ALPhA – http://www.alpha.uni-osnabrueck.de) was born in Osnabrück, under the coordination of Prof. Dr. Arndt Sinn: part of the research programme of the German Federal Ministry for Education and Research (BMBF) on public safety, this joint project is funded by the “Public Safety and White-Collar Crime” branch of the programme. The project builds on the ministry’s stated aim of using the results of the research programme to preserve and increase public safety in the face of increasing white-collar crime without compromising the principles of the rule of law.

In Portugal, the Doc Morris decision effects generated some legal and policy discussions on the subject. This reaction ultimately led to new legislation which provides that retail pharmacies (and similar sales points) may now provide the remote selling of medicines, through their websites – even to consumers currently living in other member states of the European Union, under the conditions laid down on Article 9-A of the Decreto-Lei nº 307/2007 (from 31/08). The use of an electronic website depends on prior notification to the National Institute of Pharmacy and Pharmaceuticals (INFARMED), which created and is responsible for the management of an official list of all licensed Internet pharmacies. The INFARMED then monitors the Internet presence of pharmacies engaged in remote selling, in collaboration with the pharmacies themselves and also other entities (such as the criminal police), according to Articles 9-A and 45 of the mentioned DL 307/2007 – as well as the rules established by the Portaria nº 1427/2007, from 02/11.

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EU finance rules – changes in the horizon

On May 5, 2016June 10, 2016 By officialblogunioIn NewsLeave a comment

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by Joaquim Rocha, Professor at the Law School of University of Minho

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The rules of the Stability and Growth Pact (SGP) for the European Union may yet again undergo some changes. The SGP — whose first version started being implemented in 1997 and since day one has been criticised for vagueness, complexity and juridical fragility — has gone through several amendments seeking to avoid infractions and deviations. Most recent revisions were related to excessive deficit situations into which a number of Member States have been dragged (including Portugal). Following political blockages and negotiation impasses, those revisions were taken to an “extra-Union” solution (conventional/classic international law) via the so-called Treaty on Stability, Coordination and Governance in the Economic and Monetary Union.

At this time, a solution within the EU law framework is pursued. The idea aims to simplify the rules and make them easily manageable by policymakers, public authorities, politicians in general, namely those accountable in the finances. The major line of action revolves around the introduction of a public expenditure’s control index. Simply put, the goal of the financial mechanisms would be transferred from cutting deficit in general to imposing an expenditure limit to the States, which could not override the growth rates of the economy in the mid-term.

It should be a virtuous solution as the fiscal focus has been kept on income, loans and taxes for too long, mistakenly discrediting and setting aside the essential cornerstone of finances: the expenditure.

According to the President of the Eurogroup, Jeroen Dijsselbloem, “We did not discuss how to change the Pact, just how to choose the indicators to assess the compliance with the Pact. (…) It is directly in the hands of finance ministers. It gives us more guidance in the process of designing the budget. It says in advance what you have to do, and you have the control in your hands. There was general agreement that we need an indicator that takes out all the cyclical elements and one-offs but preferably it should be more stable and not change all the time, and we could put more emphasis on indicators that we can actually directly influence as finance ministers“, via Reuters.

On the matter, the Vice President of the European Commission officially addressed after the informal ECOFIN:

“Our intention is to focus more on what is really in the hands of the Ministers of Finance, namely the evolution of primary expenditure and new revenue measures. This does not mean that we will put aside the deficit and the debt objectives. It is rather about making it clear what governments are expected to do to achieve these objectives. There was I would say broad support to pursue the work in this direction.(…) At the same time, we need to be realistic in our expectations, as many underlined that there is no perfect method of calculating the out-put gap, it will always be an approximation“, via European Commission Press Release.

The changes had been anticipated:

EU to consider single “expenditure rule” to cut through budget morass, via Reuters.

Picture credits: Money Scales by Images Money.

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Year: 2016