Month: December 2022

Editorial of January 2023

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By Editorial Team
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Checks and balances in the EU’s current context – how to address new and old affections to its institutional functioning?

In the past weeks the European news have been marred by headlines exposing a corruption scandal concerning a supposed bribery of EU Officials. Among them, European Parliament Vice-President Eva Kaili was arrested in the context of a Belgium investigation, demanding a quick response from this EU institution. The President of the European Parliament, Roberta Metsola, addressed the issue, underlining that “open, free, democratic societies are under attack”, leading to Ms. Kaili suspension from her duties of Vice-President. And, in the follow-up, on December 15, a pack of reform measures was announced to be implemented in the year of 2023. It relates to the reinforcement of European Parliament protection systems of whistleblowers, the prohibition of non-official groups of friendship, the revision of the ways to scrutinize how MEPs follow their code of conduct and the exhaustive analysis how they interact with third countries.

In addition these announced concrete measures, a wider and deeper reflection is needed to understand which checks and balances act within the EU institutional core, namely: i) which principles guide the EU institutional system’s functioning and which is its legitimacy source?; ii) why it is mentioned an institutional balance and not a separation of powers; iii) in which way that sui generis institutional setting ensures a checks and balances system; and iv) in which extent the transparency principle can be compatible with EU’s decision-making process efficacy?

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Summaries of judgments: Staatssecretaris van Justitie en Veiligheid | Senatsverwaltung für Inneres und Sport

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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 7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right of residence under Article 20 TFEU), Case C‑624/20, EU:C:2022:639

Reference for a preliminary ruling – Directive 2003/109/EC – Status of third-country nationals who are long-term residents – Scope – Third-country national with a right of residence under Article 20 TFEU – Article 3(2)(e) – Residence solely on temporary grounds – Autonomous concept of EU law

Facts

In 2013, E. K., a Ghanaian national, obtained, under Article 20 TFEU, a residence permit in the Netherlands as a family member of a Union citizen, on account of the existence of a relationship of dependency between herself and her son, who holds Netherlands nationality. In 2019, on the basis of the national legislation transposing Directive 2003/109 into domestic law, she submitted an application for a long-term resident’s EU residence permit. However, the Netherlands authorities refused her application, on the ground that the right of residence obtained under Article 20 TFEU is temporary in nature, within the meaning of that directive, and therefore excluded from its scope of application.

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The securitization of health: on the protests against the Chinese “zero-COVID” strategy

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By Rafaela Garcia Guimarães (Master in Human Rights from the School of Law of the University of Minho)
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The approach to health as a security issue is supported by the theory of securitization developed by researchers from the Copenhagen School, according to which threats to security are socially constructed, through a speech act – whether oral, written, through images and other means of communication. Discourse acquires a fundamental role in the securitization process, as it is through the act of speech that the securitizing agent (usually an authority) exposes a demand to the public as a threat to its security – a threat that may or may not be real[1].

Health securitization occurs when a disease is presented to the public as an “existential threat”. This can happen with the onset of a disease with little scientific knowledge, no easily identifiable treatment or cure, high mortality or transmissibility, and especially when they are associated with a visceral fear of pain or suffering.

Securitization results in the adoption of exceptional measures, mainly due to their urgent nature, which may lead to containment, surveillance and coercion measures. Moreover, the policy of exception is presented to society as the only means of survival – and fear makes restrictive (and even suspensive) measures for the exercise of fundamental rights more easily accepted.

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Editorial of December 2022

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By Nataly Machado (Master in European Union Law from the School of Law of the University of Minho)
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What if mechanisms of solidarity had more effectiveness beyond the borders of the European Union? At least for the climate crisis?

On 24 November last, the European Union (“EU”) energy ministers reached an initial agreement, albeit with some differences[1], on the content of the proposed Council regulation on enhanced solidarity for further temporary emergency measures aimed at curbing high energy prices through better coordination of joint gas purchases on world markets, with the objective of the Member States not competing with each other. Furthermore, they decided on gas exchanges across borders, with “measures enabling Member States to request solidarity from other Member States in cases where they are unable to secure the quantities of gas essential to ensure the operability of their electricity system”[2], and reliable price reference standards, which will provide stability and predictability for Liquified Natural Gas “LNG” transaction prices, with the new index until 31 March 2023. Also, the EU energy ministers agreed on the content of a Council regulation laying down a temporary framework to accelerate the permit-granting process and the deployment of renewable energy projects[3].

The abovementioned shows that solidarity in the context of the EU should have a more pragmatic and concrete approach – and explained by the cooperation between Member States –, since it imposes legal obligations, such as being loyal in mutual relations and undertaking all necessary efforts to achieve common goals. In other words, the possibility of justification for an imposition of solidarity linked to legal duties remains clear, since it is a question of a sharing of common tasks/responsibilities[4].

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