Author: revistaunio

Summaries of judgments: Medel v Council | Symphony Environmental Technologies and Symphony Environmental v Parliament and Others

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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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Order of the General Court (Grand Chamber), 4 June 2024, Cases T-530/22 to T-533/22, Magistrats européens pour la démocratie et les libertés (Medel), International Association of Judges, Association of European Administrative Judges e Stichting Rechters voor Rechters v Council of the European Union, Actions for annulment – Regulation (EU) 2021/241 of the European Parliament and of the Council – Council Implementing Decision of 17 June 2022 on the approval of the assessment of the recovery and resilience plan for Poland – Lack of direct concern – Inadmissibility)

Facts

The General Court, sitting in Grand Chamber, dismissed as inadmissible the actions brought by four international judges associations[1], whose members consist, in general, of national professional associations, including those of Polish judges, seeking the annulment of the Council’ implementing decision that approved the assessment of Poland’s recovery and resilience plan.

The Recovery and Resilience Facility, established by Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021, allows the European Union (“EU”) to grant funds to Member States, in the form of a financial contribution.

On 17 June 2022, the Council adopted a decision, subsequently amended by a decision on 8 December 2023, (hereinafter the “contested decision”), approving the assessment of the Recovery and Resilience Plan proposed by Poland – which specifies, the milestones that Poland must achieve for the financial contribution to be granted. These milestones include, in particular, the reform of Poland’s judicial system, detailed in milestones F1G, F2G, and F3G. In accordance with milestone F1G, legislative measures must be adopted to strengthen the independence and impartiality of the judiciary. Furthermore, milestone F2G requires measures to ensure that the judges affected by decisions of the Disciplinary Chamber of the Polish Supreme Court have access to proceedings allowing a review of the decisions of that Chamber. Lastly, milestone F3G enshrines that any proceedings initiated under milestone F2G must be concluded during the fourth quarter of 2023.

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Romania: A declaration of war from the High Court of Cassation and Justice against the Court of Justice of the European Union

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Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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The judgments of the Court of Justice of the European Union regarding the rule of law and the serious fraud against the financial interests of the European Union appear to have been optional for the Romanian courts, and a new interpretative decision of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, Decision No 37/2024, binding erga omnes, is the last proof of this fact.

For qualified researchers, the case of the Constitutional Court of Romania is well known. By Decision No 390/2021, the Constitutional Court of Romania created a ‘brick wall’ between the national courts and the CJEU, in order to maintain the applicability of national legislation contrary to the judgment of the CJEU in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, by requiring national ordinary judges not to analyse the conformity of a national provision, already found to be constitutional by a decision of the Constitutional Court, in the light of provisions of European Union law.

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Summaries of judgments: Landeshauptstadt Wiesbaden | NADA e o.

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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 21 March 2024, Landeshauptstadt Wiesbaden, Case C-61/22, EU:C:2024:251

Reference for a preliminary ruling – Regulation (EU) 2019/1157 – Strengthening the security of identity cards of EU citizens – Validity – Legal basis – Article 21(2) TFEU – Article 77(3) TFEU – Regulation (EU) 2019/1157 – Article 3(5) – Obligation for Member States to include two fingerprints in interoperable digital formats in the storage medium of identity cards – Article 7 of the Charter of Fundamental Rights of the European Union – Respect for private and family life – Article 8 of the Charter of Fundamental Rights – Protection of personal data – Regulation (EU) 2016/679 – Article 35 – Obligation to carry out a data protection impact assessment – Maintaining the effects for a certain time of a regulation which has been declared invalid

Facts

The request for a preliminary ruling was made in proceedings between RL, a German national, and the Landeshauptstadt Wiesbaden (City of Wiesbaden, Land capital, Germany) concerning the rejection by the latter of RL’s application for an identity card which does not include RL’s fingerprints. The application was rejected due to a national provision according to which the inclusion of two fingerprints in the storage medium of identity cards is mandatory. This national provision transposes Article 3(5) of Regulation 2019/1157, on strengthening the security of identity cards of Union citizens and of residence documents issued to Union citizens and their family members exercising their right of free movement.

RL brought an action before the Verwaltungsgericht Wiesbaden (Administrative Court, Wiesbaden, Germany), seeking an order requiring the Landeshauptstadt Wiesbaden to issue him with an identity card with no fingerprints being collected. The referring court had doubts regarding the validity of Regulation 2019/1157 or, at least, the validity of Article 3(5) thereof, on the grounds that, firstly, it was adopted on an incorrect legal basis, secondly, it violates Article 35 of the GDPR and, thirdly, it violates Articles 7 and 8 CFREU.

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Responsible credit in the European Union: on the pre-contractual duty to analyse the consumer’s creditworthiness when granting credit

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Mariana Marques (Master's student in European Union Law at the School of Law of the University of Minho)
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Introduction

In practice, financial institutions often grant credit without analysing the consumer’s creditworthiness. In most cases, credit is granted without analysing any variant that could compromise the borrowers’ financial capacity – and this is particularly prevalent in the granting of credit cards. Thus, any individual can obtain a credit card from most organisations without having to provide essential data, such as their salary slip, for example. Without prejudice to the consumer’s responsibility to take out credit that is appropriate to their income, would consumer credit institutions not have any duty in this regard?

On 11 January 2024,[1] the Court of Justice of the European Union (CJEU) handed down a ruling in which it clarified the duty to analyse the consumer’s creditworthiness –imposed on financial institutions before granting consumer credit. This pre-contractual duty, which is often (and unduly) brushed aside by the entities responsible for it, has been the subject of important developments in the new law governing consumer credit – Directive 2023/2225 of 18 October 2023.

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New UNIO issue now online

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By the Editorial Team
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The Editorial Board is happy to announce that a new issue of the UNIO – EU Law Journal is now online. The 10(1) issue of UNIO includes contributions from various highly respected scholars and young academics and heavily focuses on digital issues such as data protection and the challenges of regulating artificial intelligence.

We hope this new issue is relevant for our readers and would like to remind you that we are accepting submissions at UNIO and also at our blog.

You may find UNIO’s 10(1) issue here.

Summaries of judgments: Comune di Copertino | Direcţia pentru Evidenţa Persoanelor şi Administrarea Bazelor de Date

On By revistaunioIn Summaries of judgments1 Comment 
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 (First Chamber) of 18 January 2024, Comune di Copertino, Case C-218/22,  EU:C:2024:51

Reference for a preliminary ruling – Social policy – Directive 2003/88/EC – Article 7 – Article 31(2) of the Charter of Fundamental Rights of the European Union – Allowance in lieu of days of leave not taken at the end of the employment relationship – National legislation prohibiting payment of that allowance in the event of the voluntary resignation of a public servant – Control of public expenditure – Organisational needs of the public employer

Facts

BU was employed by the Municipality of Copertino (Italy), from 1 February 1992 to 1 October 2016, until his voluntary resignation, in order to take early retirement. Taking the view that he was entitled to an allowance in lieu of 79 days’ paid annual leave accrued during the period between 2013 and 2016, BU brought an action before the Tribunale di Lecce (District Court, Lecce, Italy) seeking financial compensation for those days of leave not taken. The Municipality of Copertino opposed that request invoking a national provision which provides, subject to certain exceptions, that no financial compensation may be paid for untaken paid leave. According to the Municipality of Copertino, the fact that BU had taken leave during 2016 showed that he was aware of his obligation, in accordance with that provision, to take the days of leave that he had accrued before the end of the employment relationship.

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Democratic Integrity in the Era of Digital Disinformation

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Eduardo Paiva  (Master in Law and Informatics - UMinho)
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The healthy unfolding of democratic electoral processes – and of democratic life in general – has been threatened by the dissemination of disinformation (defined as “false or misleading content that is spread with an intention to deceive or secure economic or political gain, and which may cause public harm”) by agents who do not uphold the same principles.[1] Under these circumstances, a climate of manipulation and deceit is fostered, which is extremely and particularly malign for crucial moments of political decision,[2] as attempts are made to strip them of their inherent relevance and validity, constituting one of the most dangerous forces deteriorating our democratic foundations.[3]

 In this sense, the role of major digital platforms, as holders of vast power to control and influence communication and information channels on a global scale, is chronic and central in this issue. Taking this into account, they should be compelled to engage in self-criticism towards a certain openness in applying changes to the operational models of their businesses.[4] The enormous capacity of these technological platforms in amplifying and micro-targeting content makes them extremely attractive for the precise propagation of information on a large scale, thus making them systematically targeted for hybrid activities in the field of disinformation. Amidst this web of opaque information, it is more important than ever to know which profiles and posts are genuinely concerned with conveying the reality of facts in an impartial and well-founded manner.

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Iris collection as a proof of personhood: current trends on biometric recognition

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Maria Inês Costa (PhD Candidate at the School of Law of the University of Minho. FCT research scholarship holder – UI/BD/154522/2023)
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In Portugal, more than 300,000 people have already “sold” their iris scan to Worldcoin Foundation, which in return offers them cryptocurrency. In March 2024, the Portuguese data protection authority (hereinafter, the CNPD) decided to suspend the company’s collection of iris and facial biometric data for 90 days in order to protect the right to the protection of personal data, especially of minors, following in the footsteps of Spain, which also temporarily banned the company’s activities for privacy reasons.[1]

In a statement, the CNPD explains that the company has already been informed of this temporary suspension, which will last until the investigation is completed and a final decision is made on the matter. The adoption of this urgent provisional measure comes in the wake of “dozens of reports” received by the CNPD in the last month, which report the collection of data from minors without the authorisation of their parents or other legal representatives, as well as deficiencies in the information provided to data subjects, the impossibility of deleting data or revoking consent.[2] In CNPD’s press release, one can read that “[g]iven the current circumstances, in which there is unlawful processing of the biometric data of minors, combined with potential infringements of other GDPR rules, the CNPD considered that the risk to citizens’ fundamental rights is high, justifying an urgent intervention to prevent serious or irreparable harm.”[3]

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Summaries of judgments: OT v Council of the European Union | Abramovich v Council

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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 of the General Court (First Chamber, Extended Composition), 10 April 2024, Case T-301/22, Petr Aven v Council of the European Union

Common foreign and security policy – Restrictive measures taken in view of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – List of persons, entities and bodies covered by the freezing of funds and economic resources – Inclusion and maintenance of the applicant’s name on the lists – Concept of ‘support for actions or policies’ – Article 2(1)(a) of Decision 2014/145/CFSP – Article 3(1)(a) of Regulation (EU) No 269/2014 – Concepts of ‘material or financial support for Russian decision-makers’ and ‘benefit’ from those decision-makers – Article 2(1)(d) of Decision 2014/145 – Article 3(1)(d) of Regulation No 269/2014 – Error of assessment

Facts

The Council of the European Union (‘the Council’) adopted, following the military aggression carried out by the Russian Federation (‘Russia’) against Ukraine on 24 February 2022, several measures by which it added the applicant’s name to the lists of persons, entities and bodies supporting actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (“the lists at issue”), adopted by the Council since 2014.

On 28 February 2022, the Council imposed on the applicant, Mr. Petr Aven, an oligarch of Russian and Latvian nationality, the freezing of his banking funds and assets, in accordance with Article 2(1) and (2) of Decision 2014/145/CFSP of 17 March 2014[1].

The Council took such actions on the ground that he is a major shareholder of the Russian conglomerate ‘Alfa Group’, one of Russia’s main banks. As such, the applicant is one of the most influential persons in Russia and has links with the Russian President, Vladimir Putin, supporting the Russian regime. According to the Council, the Russian President rewarded the Alfa Group for its loyalty to the Russian authorities by promoting the group’s investment plans abroad.

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Editorial of May 2024

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By the Alessandra Silveira (Editor)
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“Europe is mortal”: recovering the original impetus for loyal co-operation of Article 4(3) TEU

Last April 25, while the Portuguese were celebrating the 50th anniversary of their democracy, French President Emmanuel Macron delivered a speech at the Sorbonne University urging the European Union (EU) to urgently rethink its economic and defence models, otherwise it will become irrelevant on the world stage value-wise – that is the meaning of the metaphor according to which the Europe we have come to know could die.[1] The rules of the game have changed on several fronts – including geopolitics, economy, trade and culture – and in this context, the “European way of life” is under threat and could fall into decay. Moreover, fighting Western values is the more or less declared plan of those who want a new illiberal international order.

Russia’s invasion of Ukraine marks the beginning of a new phase for European integration, the shape of which is not yet fully understood. But one thing is certain: in this new phase, loyal co-operation between European institutions and Member States – as well as their loyalty to each other – is particularly important. This is not a time for friction or dispute between Europeans and their representatives, because in the face of the barbarity of war, what is at stake is always of an existential nature. In other words, it is always a matter of life and death, also for European values and their relevance in the world. Against this backdrop, it is important to identify the new winds that are blowing across the relations of articulation and interdependence between the legal-constitutional order of the EU and the legal-constitutional order of the Member States.

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