Month: June 2017

Portuguese Constitutional Court’s decision n.º 591/2016, of 9 November 2016 or when the Constitutional Court looked to EU law legal aid matters: figuring out the treasure’s map…

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

On 9th November 2016, the Portuguese Constitutional Court issued decision n.º 591/2016, concerning an incidental and concrete constitutionality control presented before this court.

In the litigation, a legal person presented before the competent national administrative authority (Instituto da Segurança Social, I.P. – Centro Distrital de Braga) a request for legal aid, which was refused without further consideration since article 7(3) of the Portuguese legislation (Lei n.º 34/2004) is clear when it states that “legal persons operating for profit and individual establishments of limited liability do not have the right to legal aid”[i].

Not accepting that decision, the legal person presented an action before the national first instance court where pleaded for the unconstitutionality of the mentioned article 7(3) of Portuguese legislation (Lei n.º 34/2004) and, simultaneously, for the infringement of article 47 of the CFREU.

The court ruled against the legal person because there was a “clear impracticability” in the litigation, understanding among others that the national legislation was not unconstitutional since article 20 of the Portuguese Constitution demands concretization approaches and, for that matter, the limitation steaming from the national legislation was not compromising the Constitution’s setting since other legal mechanisms could be used by the litigator so that it could react under financial stress.

However, the national court did not mention anything concerning EU law and the interpretation national legal rules should meet under EU general principles.

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Competition harms created by administrative legislation: a new approach to an ancient problem

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by, María Pilar Canedo Arrillaga, Professor at the University of Deusto and Jean Monnet Chair
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Competition law has a general aim of protecting markets against those actors that, for different reasons, break the rules of the game and obtain an extra-benefit harming competitors, consumers and society in general.

The traditional approach to competition law is to focus attention on undertakings – generally the most powerful because of different reasons – that find in the absolute freedom of laissez faire, the best opportunity to maximize their particular benefits not taking into consideration the general interest. Articles 101 and 102 of the Treaty of the Functioning of the EU have been the most relevant tool to fight these practices both by the European Commission and the national or subnational authorities.

In the former 20 years attention has been given by different international Organizations (OEDC, UNCTAD) to the role played by the State in the harms generated in the markets. Article 107, TFUE (dealing with State Aid) was since the beginning of the European Market one of the concerns of the EU institutions but a new approach is needed in this field.

The many different levels of administration (central Governments, regions, provinces, mayors) have the power to create legislation that reduces competition by creating entry barriers in markets or by generating discrimination between economic actors.

Those administrations have an incredible economic power when they enter into public procurement procedures in order to guarantee services and products to de citizens. If those administrations don’t impose the principles of efficiency in their procedures, the services received by the population will be more expensive and will have lower quality.

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Data Protection Officer according to GDPR

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by André Mendes Costa, masters student at University of Minho
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In an ever changing world of information technologies, privacy and data protection inevitably attracts considerable attention.

The Portuguese Data Protection Law and the EU Directive 95/46 will be soon replaced by a new European and National legal framework. In fact, the new General Data Protection Regulation (GDPR) alters profoundly the paradigm of the personal data protection legal regime. The 679/2016 Regulation (GDPR) is part of a new European community legislative package which also includes a directive that lays down the procedures for dealing with personal data by the competent authorities for the purposes of prevention, research, detection and prosecution of criminal offences or the execution of criminal penalties. The Regulation came into force on 25th May and establishes a vacancy period of 2 years, providing the necessary time for the public and private sectors to equip themselves to face the new regulatory demands.

This brief analysis concentrates on the post of the data protection officer (DPO), on his/her duties and competencies and on those entities who are responsible for his/her appointment.

In the new European legislation there is an important change of paradigm in the protection of personal data namely the suppression – with a few exceptions contained in the Regulation – of the requisite of pre notification to the National Commission of Data Protection (NCDP). This change assigns to the person responsible for the processing of data the onus of legal guarantor of his/her cases, thus fully observing the Regulation. In fact, in the cases where there is no prior notification to the competent authority (NCDP), the Regulation has found other forms of guarantying that the processing of personal data is legally protected by creating the post of a data protection officer (DPO).
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Judicial review of EPPO procedural acts and decisions: a disruptive and resilient architecture?

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Crime Scene

by Luis de Lemos Triunfante, Judge-Second National Expert at Eurojust Portuguese Desk
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“The creation of a European Public Prosecutor’s Office will enable us to have the missing tools: kick investigations across the Union and exchange of information in real time. The European Public Prosecutor will work together with the Deputy Prosecutors of each of the 17 participating countries and congregate national expertise by coordinating them at EU level. The objective is to create a strong, independent and effective body that develops expertise in the fight against financial crime throughout the EU. The 17 Member States concerned will now move the process forward, hoping that others will join soon. The Commission has always defended the interest of all Member States and this initiative is open to all”, Sharing sovereignty to combat financial crime – Jean-Claude Juncker.

DH-CII (Human Rights Centre for Interdisciplinary Research), in collaboration with CEDU (Centre of Studies in EU Law) and the Union of Magistrates of the Public Prosecutor’s Office, organised, on 18 May at the Law School of the University of Minho, an International Criminal Law Congress about “The new challenges of Judicial and police cooperation in the European Union and the implementation of the European Public Prosecutor’s Office”.

The aim of that initiative was to bring to the discussion the main issues that lie today in judicial and police cooperation, mutual recognition, harmonization and the protection of human rights in the European Union. It also intended to analyse the challenges surrounding the implementation of the European Public Prosecutor’s Office (EPPO). In a special way, a critical and prospective look was taken on the Proposal for a Council Regulation establishing the EPPO under discussion, taking into account the current state of negotiations, the main aspects of substantive criminal law and substantive Criminal proceedings; the Statute and the institutional design of the EPPO (matters of institutional law) and the relations between the EPPO, Eurojust and OLAF.

One of the main issues of the EPPO is the judicial review.
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Editorial of June 2017

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by Alessandra Silveira, Editor
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Waiting for a federal big bang in EU? Updating the theory of federalism in times of liquid modernity

On May, 22-23, at Nova Law School, Lisbon, took place a conference on “The federal experience of the European Union: past, present and future”, organized by Professor Nuno Piçarra. Sixty years after the signing of the Treaty of Rome and twenty-five years after Maastricht, the EU may be living a true moment of “constitutional mutation” that may dramatically change its identity. Yes, it is possible to re-found the EU without revising the Treaties (as constitutional mutation is nothing new and it has been working since the beginning of the integration) and without committing “semantics imprudences” (avoiding the “blasted” nature of terms such as constitution and federation). Therefore, this is the right time to address the EU federative experience from an historic perspective and to analyse the role which such an acquis may play in the shaping of the future EU. For these reasons, the purpose of that conference was to tackle the following three questions. First, how should we evaluate the EU federative experience, sixty years after the signing of the Treaty of Rome? Second, which are the main challenges facing the EU in the light of its federative experience? Third, do these challenges and respective answers suggest that the European federative dream is over, or just undergoing a new form of development?

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