Month: June 2018

Judgment “Altun”: priority to fight against cross-border social security fraud and social dumping or a just a trick mirror?

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by Marc Morsa, Senior Researcher at the Faculty of Law of the University of Louvain-La-Neuve

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1. Social dumping and binding force of E101 certificate (A1 document)

1.1 The scope of the binding force of E101 certificate

In the fight against cross-border social fraud and social dumping the competent authorities of the host Member State in whose territory posted workers are employed often come up against the binding force attached to the E101 certificates stating that the worker concerned continued to be subject to the legislation of that Member State, and until which date. This binding force has been defined by the ECJ in a well-established jurisprudence[i]. This certificate thus necessarily implies that the other Member State’s social security system cannot apply[ii]. It establishes a presumption that the worker concerned is properly registered with the social security system of the Member State in which the undertaking employing him is established[iii][iv]

1.2 The cornerstone of the binding force of E101 certificate: the principles of loyal cooperation and mutual trust between the EU and its Member States

For the ECJ this presumption of regularity of affiliation derives from the principle of loyal cooperation, set out in Article 4 (3) TEU and its corollary, the principle of mutual trust[v]. Both principles impose on the social security institutions concerned a double reciprocal and interdependent obligation[vi]. Thus, to the negative obligation incumbent on the competent institution of the host Member State (and on all the courts and tribunals of the Member States regardless of the nature of the proceedings brought, whether civil or criminal) not to unilaterally challenge the certificate E101 – its particulars[vii] and not to question the validity of an E 101 certificate in the light of the elements on the basis of which it was issued corresponds to the positive obligation incumbent on the competent institution (issuing the E 101 certificate) to make a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable to social security and, consequently, to ensure that the information contained in an E 101 certificate is accurate[viii].
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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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