Year: 2021

Covid-19: a matter of security

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by Rafaela Figueiredo Garcia Guimarães (Master’s student in Human Rights at University of Minho)
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“We must declare war on this virus”, asserted the Secretary-General of the United Nations (UN), António Guterres, when commenting on the global response to the Covid-19 pandemic, on March 13, 2020[1]. On April 23, 2020, the Director-General of the World Health Organization (WHO), declared that “the war against Covid-19 is far from won by the Planet”[2]. By the same token, Bruce Aylward, Senior Advisor on Organizational Change to the WHO Director-General, also stated at a press conference on March 26, 2021, that “we are at war with the virus, not against each other, and the common goal is to end the coronavirus”[3]. Josep Borrell, the High Representative on behalf of the European Union (EU), in his declaration on April 3, 2020, proclaimed that “this is a time when we should spend all of our energy and resources in the fight against this common global threat – the coronavirus“[4]. Likewise, German Chancellor Angela Merkel, in her speech to the nation on March 18, 2020, acknowledged that “there has not been a challenge like this since World War II, which depends so much on a joint action of solidarity”[5], and the French President, Emmanuel Macron, on March 16, 2020, openly declared that “we are at war and that the enemy, although invisible, is here”[6]. “This is a war! It is really a war we are dealing with,” assures the Portuguese President, Marcelo Rebelo de Sousa, on March 18, 2020, in his message to the Portuguese people[7]. Last but not least, the President of the United States of America, Joe Biden, on January 21, 2021, stated publicly the endorsement of a “large-scale war effort to fight the pandemic”[8].

Since WHO’s public announcement, on March 11, 2020, the disease caused by the SARS-COV-2 coronavirus and on the fact that we were in the face of a pandemic, Covid-19 has been treated as a security issue, with coronavirus being the global enemy that needs to be tackled and eliminated. Thus, the health crisis Covid-19 gave rise to came to be considered a threat to global security.

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Much ado about the Social Summit?

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by Graça Enes (Faculty of Law of the University of Porto and CIJE)
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The Porto Social Summit was the high point of the Portuguese Presidency, a two-day event (May 7-8th) intended to achieve a strong commitment from Member States, European institutions, social partners, and civil society towards the implementation of the Action Plan for the European Pillar of Social Rights[1]. Several side events occurred along the weeks before the Summit, in Portugal and elsewhere[2], anticipating the debate.

In the days before, important members of the Portuguese Government made public statements stressing the ambition of the event. Ana Paula Zacarias, the Secretary of State for European Affairs, stated that the Porto Social Summit could “move principles to action”.

On May 7th, the Summit webpage announced: “Porto Social Summit starts today, defining EU policies for the next decade”. The stakes were high.

During the afternoon of the first day, a High-Level Conference was held for an extended debate, involving members of the Commission, the President of the European Parliament, the President of the European Council, Heads of Government, and social partners. In addition to the implementation of the European Pillar of Social Rights, issue that was addressed by the Commissioner for Jobs and Social Rights, Nicolas Schmitt, the discussion focused around three major subjects: work and employment; skills and innovation; welfare state and social protection. The participation in the debate went beyond the European Union, with the presence of the Director-General of the International Labour Organization and the Secretary-General of the Organization for Economic Cooperation and Development. The works of the conference were live streamed, and everyone could follow the debates taking place at the Alfândega building. At the opening session, António Costa declared: “We are here today to renew the European social contract, making a commitment, each one at their own level, to develop innovative and inclusive responses”. At the end of the day, Ursula von der Leyen stated: “The Porto Social Summit is our joint commitment to build a social Europe that is fit for our day and age and that works for everyone”. The tangible outcome of this debate was the “Porto Social Commitment”[3], an encompassing compromise of the EU institutions, Member States and European social partners that was being prepared for weeks and was solemnly presented by the three Presidents on the evening of May 7th.

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Editorial of May 2021

On By revistaunioIn Editorials4 Comments 
Alessandra Silveira, Joana Covelo de Abreu, Pedro Madeira Froufe (Editors) and Tiago Sérgio Cabral (Managing Editor)
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Conference on the future of Europe and the defence of European values

On March 10th, 2021, following a long negotiation, the Presidents of the European Parliament, the Council of the EU and the European Commission signed the “Joint Declaration” on the “Conference on the Future of Europe”, holding its joint presidency.[1] The Conference will be officially launched on May 9th, 2021 in an inaugural session in Strasburg and it will be extended until the Spring of 2022. It aims at creating a new public forum for an open, inclusive, transparent and structured debate with Europeans around the issues that matter to them and affect their everyday lives. A new Special Eurobarometer, published one day before the signing of the Joint Declaration, focuses on the Conference and measures attitudes towards it and some of the key themes to be covered.[2]

Three-quarters of Europeans consider that the Conference will have a positive impact on democracy within the EU: 76% agree that it represents significant progress for democracy within the EU, with a clear majority supporting this view in every EU Member State. The very vast majority of Europeans (92%) across all Member States demand that citizens’ voices are “taken more into account in decisions relating to the future of Europe”. While voting in EU elections is clearly regarded (by 55% of respondents) as the most effective way of ensuring voices are heard by decision-makers at EU level, there is very strong support for EU citizens having a greater say in decisions relating to the future of Europe. 45% of Europeans declare themselves “rather in favour of the EU but not in the way it has been realised so far”. Six in ten Europeans agree that the Coronavirus crisis had made them reflect on the future of the EU while 39% disagree with this.

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Summaries of judgments: DB v Commissione Nazionale per le Società e la Borsa (Consob) | A.B. and Others v Krajowa Rada Sądownictwa and Others

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Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 2 February 2021, DB v Commissione Nazionale per le Società e la Borsa (Consob), Case C-481/19, EU:C:2021:84

Reference for a preliminary ruling – Approximation of laws – Directive 2003/6/EC – Article 14(3) – Regulation (EU) No 596/2014 – Article 30(1)(b) – Market abuse – Administrative sanctions of a criminal nature – Failure to cooperate with the competent authorities – Articles 47 and 48 of the Charter of Fundamental Rights of the European Union – Right to remain silent and to avoid self-incrimination

1. Facts

The request for a preliminary ruling was made in proceedings between DB and the Commissione Nazionale per le Società e la Borsa (Consob) (National Companies and Stock Exchange Commission, Italy) concerning the lawfulness of two financial penalties imposed on DB for an administrative offence of insider trading and for failure to cooperate in the context of an investigation conducted by Consob. Regarding the latter, after applying on several occasions for postponement of the date of the hearing to which he had been summoned in his capacity as a person aware of the facts, DB had declined to answer the questions put to him when he appeared at that hearing.

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The importance of the European Banking Authority in harmonising the credit moratorium regime

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by Marina Barata (Master's in Law)
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The pandemic outbreak caused by COVID-19 and the government measures taken by several European Union countries to address or mitigate the spread of the disease had, and continue to have, dramatic consequences for the economy.

Individuals and companies were affected by the economic crisis arising from the successive states of confinement, which created situations of default, even if in some cases temporary, of their financial obligations.

This possible and imminent lack of liquidity on the part of debtors would have a devastating impact on credit institutions, since loans defaults would lead to an increase in the number of defaulters and greater and heavier capital requirements for institutions.

For this reason, credit moratoria were implemented broadly by most of the European Union’s Member States.

Traditionally, a moratorium is the granting of an extension of a line of credit’s payment period, whereby the payment of the instalments is suspended for the period during which the moratorium lasts and the deadline for their full payment is extended for the same period. In the expression of the law, the moratorium is the deferment of the fulfilment of the beneficiaries’ obligation towards the banking system.

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“Fintech”: in search of a legal definition

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by Carlos Goettenauer (PhD Candidate at University of Brasília)
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During the last decade, the term “fintech” gained popularity and became a topic of discussion among market agents and financial regulators all around the world. The term’s origin, however, can be traced to the early 1990s, when Citigroup established the “Financial Services Technology Consortium”[1]. As with any other nascent buzzword, its meaning remains a subject of debate and controversy among many social actors. Market agents tend to associate the term “fintech” with innovations on financial systems and on so-called “market disruptions”, linking it to other common Silicon Valley tropes, such as “disintermediation” and “consumer-empowerment”. On the other hand, financial industry incumbents, and even its regulators, may wish to broaden the meaning of the term “fintech”, in order to fit all sorts of technological innovation under its umbrella. Considering its many possible meanings, it is time we ask whether there is space for a legal definition of “fintech”.

The law often plays a major role in reducing polysemy in contested expressions. Legal predictability and normative stability require terms to be precisely defined and agreed upon. This way, a legal definition (or even a statutory definition) of “fintech” would aid authorities in grounding their regulatory efforts, thus producing a more stable and predictable legal environment for both entrants and incumbents.

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Summaries of judgments: Ryanair DAC/Commission (T-259/20)

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Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgment from General Court (Tenth Chamber, Extended Composition) of 17 February 2021, T – 259/20, Ryanair DAC/Commission

State aid – French air transport market – Deferral of payment of civil aviation tax and solidarity tax on airline tickets due on a monthly basis during the period from March to December 2020 in the context of the Covid-19 pandemic – Decision not to raise any objections – Aid intended to make good the damage caused by an exceptional occurrence – Free provision of services – Equal treatment – Criterion of holding a license issued by the French authorities – Proportionality – Article 107(2)(b) TFEU – Duty to state reasons

1. Facts

On 24 March 2020, French Republic notified the Commission of an aid scheme in the form of a deferral of the payment of civil aviation tax and solidarity tax on airline tickets due on a monthly basis during the period from March to December 2020, accordingly with Article 108(3) TFUE. This aid is designed to guarantee that the airlines holding an operating license issued in France are able to maintain sufficient liquidity until the restrictions, prohibitions on movement are lifted, and normal commercial activity is resumed. With this measure, the French Republic differs the referred tax payment until the 1 January 2021 and then spreads payments over a period of 24 months, until 31 December 2022.

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Editorial of April 2021

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Tiago Sérgio Cabral (Managing Editor)
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The Council’s Position regarding the proposal for the ePrivacy Regulation: out of the frying pan and into the fire?

1. The Council’s Position

On 10 February 2021, the Council of the European Union (finally) agreed on a negotiating mandate regarding the proposal for a new ePrivacy Regulation (the Council’s text shall be referred to as the ‘Council’s Position’ and the original Commission proposal as the ‘ePrivacy Proposal’), breaking a multi-year deadlock and giving new breath to the proposal which is meant to replace the current ePrivacy Directive 2002/58 and establish a coherent framework between the lex specialis and the general rules contained in the General Data Protection Regulation 2016/679 (GDPR).

While some expectations could be noted due to the long-awaited agreement, public reactions to the Council’s Position were not exactly warm. Notably, the Federal Commissioner for Data Protection and Freedom, Ulrich Kelber, considered that the Council’s Position, if adopted, would be a blow for data protection across the European Union. Particularly controversial were the provisions of the Council’s Position which may allow for the implementation of cookie walls, the rules on data retention and ‘return’ of metadata processing without consent.

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The importance of a conceptual reform in the regulation of emerging technologies

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by Manuel Resende Monteiro Protásio (LL.M Law & Technology, Tilburg University)
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Whenever a different situation or circumstance emerges in society, we, as a group of individuals, instinctively react by trying to comprehend it. The first individual and social construction that we build to understand reality in a consensual way is language itself.

Although our thoughts and concerns on how we perceive society may differ, as language, legal concepts try to establish a consensus between Law and almost every aspect of human life. If we add a new element to our human interactions, like technology, one should ask the question if this new element in our reality requires new language to understand it, or new legal concepts to regulate it.

The need to conceptualize the way we interact with our environment is inherent to our nature. In fact, Language and Law are the most established and sophisticated social constructions that people designed to control their interpersonal relations as well as the environment around them. Both are models of interpretation of our reality and tools that we created to control what we perceive. If we consider the impact of emerging and disruptive technologies in our society, we must assume that the need for a new conceptual approach to regulate technologies is undeniable.

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Options for keeping the Common Agricultural Policy within the Green Deal

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by Rafael Leite Pinto (Master in EU Law – University of Minho)
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1. Common Agricultural Policy (CAP) goals within the Green Deal

Presented in 2019, the Green Deal intends to pave the road for a sustainable European Union, cutting emissions by 40% until 2030 and achieving carbon-neutrality by 2050. At her first State of the Union speech, commissioner Ursula Von der Leyen updated the 2030 goal to 55%, following the Parliament’s goal of cutting emissions by 60%.  Within the Green Deal, the Commission revealed several strategic plans including the “Farm2Fork Strategy” and “Biodiversity Strategy”. These plans unveiled the most ambitious goals ever when it comes to reducing the environmental impacts of food production, such as a 50% reduction in pesticide use until 2030; 50% reduction in soil nutrient loss; 50% reduction of antibiotic use in animal farms; increase of the total share of organic farming land to 25%; establish 30% of land and sea as protected areas; plant 3 billion trees; halt and reverse the decline of pollinators; and invest 20 billion euros per year on biodiversity.

Despite the bold target setting, several issues related to the implementation of the necessary measures have been raised. Mainly the compatibility of the proposed Common Agricultural Policy post-2020 and the established goals. The first proposal by the Commission, published in 2018 showed some improvement in agri-environmental measures but was largely classified as insufficient[i],[ii] even for the less demanding goals at the time. In its “How the future CAP will contribute to the EU Green Deal” document, the Commission refrained from further developing the proposal, repeating the previously announced measures. That said, a later published Staff Working Document[iii] concluded that the proposed CAP could have a potential contributory effect to the Green Deal goals, as long as it was approved by the Parliament and the Council in the exact terms proposed, or more demanding ones. Problem is, historically, CAP proposals are diluted in the trilogue and this time was no different. At the end of 2020, a final agreement was reached, and the new CAP was voted in what has been classified by NGO’s as “a kiss of death” for nature in Europe[iv]. Both, the Parliament and the Council voted to soften the proposed agri-environmental measures leading to public outrage and campaigns such as “#votethisCAPdown” and “scrapthisCAP”. The World Wildlife Fund (WWF) accused the European Union’s institutions of ignoring the Green Deal and the evidence when it comes to agriculture’s environmental impacts[v]. For Greenpeace, the new CAP represents the death of small farmer’s and possibly the Green Deal[vi].

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