Migration crisis in the European Union: a factual reflection

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 by Teresa Alves, member of CEDU

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

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

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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A Union based on the rule of law beyond the scope of EU law – the guarantees essential to judicial independence in Associação Sindical dos Juízes Portugueses

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor


On 27 February 2018, the European Court of Justice (ECJ) delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16), a judgment which, for its relevance for effective judicial protection and the rule of law in the EU, is already compared with Les Verts (here).

At the origin of the request for a preliminary ruling is a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). These measures were adopted on the basis of a Portuguese law of 2014 putting in place mechanisms for the temporary reduction of remuneration (and the conditions governing their reversibility) of a series of office holders and employees performing duties in the public sector, including members of the judiciary. As the Advocate General Saugmandsgaard Øe pointed out (here), the ECJ was in essence asked to “determine whether there is a general principle of EU law that the authorities of the Member States are required to respect the independence of the national judges and, more particularly – in the light of the circumstances of the main proceedings – to maintain their remuneration at a constant level that is sufficient for them to be able to perform their duties freely.”

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Editorial of April 2018

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 by Joana Whyte, Associate Lawyer at SRS Advogados and member of CEDU


Fashionistas rejoice, it’s the end of Geo-Blocking!

In a vote of 557 for and 89 against, Regulation 2018/302 of the European Parliament and the Council of 28 February 2018, which addresses unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market, was approved. The new set of rules will apply from December 2018.

The end of Geo-Blocking has been a priority for the EU in the creation of a digital single market. This Regulation aims to address unjustified geo-blocking by removing certain barriers to the functioning of the internal market.

This is good news not only for fashion consumers but also for consumers of other services/ industries. The new set of rules also applies to the offline provision of services by hotels and car rental companies and the online sale of event tickets, as well as to the provision of electronic services (cloud services, data storage, website management).

Put simply, Geo-blocking is the practice that prevents consumers in one Member State from buying a good or service sold online in another Member State. This practice has been harming fashion consumers by preventing them from purchasing from websites and apps from other Member States and also by the application of different general conditions of access to goods and services to customers from other Member States – e.g. refusal to deliver abroad, to accept payment, rerouting and website access blocks.
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