Europe and the train of the Digital Single Market

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by Isabel Espín, Professor at the Law School of Universidade de Santiago de Compostela

The European Union must not miss the train of a true digital single market that will keep the momentum of its important digital content industry and make it more competitive without losing the essence of European cultural identity.

The Communication from the Commission on a strategy for the Single Digital Market in Europe of 6 May 2015 takes account of this and calls for a comprehensive legislative reform in order to combat fragmentation and barriers in the European digital market, a situation that has been affecting Europe’s leadership capacity in the global digital economy.

The basis for such regulatory initiatives are Article 4 (2) (a) and Articles 26, 27, 114 and 115 of the Treaty on the Functioning of the European Union. There are many topics involved in a comprehensive and integrated single market initiative: data protection, e-commerce, consumer protection, access (broadband and interoperability), competition law, taxation, etc.

From the point of view of copyright, the Commission’s communication on promoting a European economy founded on fair, efficient and competitive copyright in the digital single market, of 14 September 2016, is the instrument that point out the initiatives concerning the protection of copyright in the digital single market. Such initiatives are: the Proposal for a Regulation regulating copyright and related rights for online television broadcasts and rebroadcasts on online TV and radio programs; Proposal for a Regulation governing the exchange of accessible copies between the EU and third countries part of the Marrakesh Treaty; Proposal for a Directive to facilitate access to public works for blind and or visually impaired persons (Marrakech Treaty).

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Eurogroup and secrecy

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by Andreia Barbosa, PhD student at the Law School of UMinho

It is clear from Article 1 of Protocol No 14, annexed to the Treaty on the Functioning of the European Union, that Eurogroup meetings take place informally.

Informality is reflected in two aspects. First, according to the terms in which the meetings are held, that is, as to the procedure adopted therein. In fact, there is no set of rules defining the procedure to be followed, for example, to ensure the involvement of all actors and to determine the order in which such interventions can be carried out and the duration they may have. Secondly, the terms in which «decisions» are taken and how they are made known to the public. It is through press conferences that the outcome of the meetings is presented to citizens of the Union (and when they are).

It should be noted that we refer to «decisions» as a result of Eurogroup meetings, even though we know that the formal, final, and binding decision on the subject is actually taken at the Ecofin meeting. However, we are also aware of the fact that the votes made at Ecofin express the outcome of the previous Eurogroup meeting. The final decision of Ecofin was born in the Eurogroup.

So, the informality resulting from Article 1 of Protocol No 14 actually means «opacity». Contrary to the idea of necessary transparency and publicity in all decision-making centers, no minutes or documents are signed in the Eurogroup, there are no transcripts or records relating to the respective meetings. No database has ever been set up to add up the «decisions» taken. The proposals under discussion, the presented votes, the conflicts of interest that have arisen and the commitments made are not known. Moreover, the acts of the Eurogroup can not be syndicated before the Court of Justice of the European Union, even though they are not documented, neither on paper nor in audio or video.

Although a certain procedural informality is admitted (but still susceptible of criticism), it does not seem to admit an opacity in the decisions. In abstract, a procedure can be informal and simultaneously transparent. In particular, the functioning of the Eurogroup may be informal, but its «decisions» should not be opaque. And the lack of transparency that exists goes beyond mere confidentiality.

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Unveiling the meaning of freedom of religion in the workplace – or, unveiling the Achbita and Bougnaoui judgments

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by Sophie Perez Fernandes, Junior Editor

Our editorial of November 2016 related to two preliminary references proceedings at the time pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work and, particularly, the highly sensitive issue of the wearing of Islamic headscarves (and not the full veil) in the workplace. The issues raised in both cases required the interpretation of the concept of ‘discrimination on the grounds of religion or belief’ within the meaning of the Anti-Discrimination Directive – the Directive 2000/78[i]. Let us recall the fundamental questions at issue: is a private employer allowed to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace?; is the dismissal of an employee who refuses to comply with such rules restricting the wearing of religious symbols at work unlawful?

On 14 March 2016, the Grand Chamber delivered both the Achbita (C-157/15) and the Bougnaoui (C-188/15) judgments, two significant decisions in relation to discrimination in employment on grounds of religion. The facts at the origin of each case were slightly different.

In the first case, Ms Achbita started to work for G4S as a receptionist in 2003 and complied with the rule according to which workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace, an unwritten rule at the time. In 2006 Ms Achbita informed her employers that she intended, in future, to wear an Islamic headscarf at work and, in reply, was informed that such intention was contrary to G4S’s position of neutrality. Shortly afterwards, the above mentioned unwritten rule was written down: the workplace regulations thus stipulated that «employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs». Shortly after the amendment was approved, Ms Achbita was dismissed on account of her continuing insistence that she wished to wear the Islamic headscarf at work.

In the second case, Ms Bougnaoui was informed at a student recruitment fair by a representative of Micropole that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company. When Ms Bougnaoui began to work at Micropole in 2008 as an intern, she was initially wearing a bandana and subsequently an Islamic headscarf. Micropole nevertheless employed her at the end of her internship. Almost a year later, Ms Bougnaoui was dismissed. A customer of Micropole’s with whom Ms Bouganoui had worked informed her employers that her wearing the headscarf had upset some of their employees and requested that there should be «no veil next time». Despite the request of her employers, Ms Bouganoui refused to agree not to wear the headscarf in the future and was thus fired in 2009.

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Editorial of March 2017

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by Pedro Madeira Froufe, Editor

The future (in White Paper) of Europe, according to Juncker

The European Commission has presented the White Paper on the Future of Europe precisely now in the year of the milestone celebration of 60 years of integration[i] and when it is taking place the technical and diplomatic operation of materialising Brexit.

It is always good and never inopportune to launch a debate on the future of integration, especially when the Union faces a political, economic and social turbulence and, at the external level, the geopolitical indetermination which makes this debate an existential issue. Incidentally, by promoting this debate, it is indispensible that it is rapidly consequent.

The White Paper was then presented at the European Parliament, on 1st March, by the President of the Commission who intended to propose options to strengthen the Union in the post-Brexit. Juncker wanted to highlight, by all means and with certainty before the context and the dark and hesitant note with which the integration and the EU have been marked, a sign/memory of hope: “Our darkest days are still far brighter than any spent by our forefathers imprisoned in Ventotene” [the Italian prison where Altiero Spinelli and Ernesto Rossi were kept during the II World War].

The intention of the Commission and its President is understandable (in fact, he has already announced he won’t be running for a second term). Indeed, this motivating intention of the newly presented White Paper was explicitly affirmed: as we face a Europe post-Brexit, the integration of 28-1 and with risks of not being able to stem possible propensities for new withdrawals, we must quickly define a new path. A definition that will mean necessarily a commitment of deepening the integration, among all. The question is precisely knowing/defining how to advance to this deepening. Furthermore: what does it mean, realistically and consequently today, such deepening? That is, which path to define to the future (nearly) immediate of the Union?

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