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Summaries of judgments: J & S Service | VL v Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie

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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 (First Chamber) of 10 December 2020, J & S Service, Case C-620/19, EU:C:2020:1011.

Reference for a preliminary ruling – Personal data – Regulation (UE) 2016/679 – Article 23 – Restrictions – Important financial interest – Enforcement of civil law claims – National regulation referring to provisions of Union law – Tax data relating to legal persons – Incompetence of the Court

Facts

The dispute in the main proceedings opposes the Land Nordrhein‑Westfalen to D.‑H. T., acting as trustee in bankruptcy for J & S Service UG, in connection with a request for obtaining tax data concerning this company.

The tax administration having rejected this request, D.-H. T. appealed to the competent Verwaltungsgericht, which essentially upheld his appeal. The competent Oberverwaltungsgericht dismissed the appeal lodged by the Land Nordrhein-Westfalen against the judgment at first instance. This court considered in particular that the right of access to information, exercised on the basis of the law on freedom of information, was not precluded by existing specific rules in tax matters. Therefore, although the information requested was covered by tax secrecy, D.-H. T. was entitled, in his capacity as trustee in bankruptcy, to ask J & S Service for any information relating to the insolvency proceedings. The Land Nordrhein-Westfalen appealed against this decision to the Bundesverwaltungsgericht.

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The transversality of mental health in a “European Health Union”

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Alessandra Silveira (Editor) and Maria Inês Costa (Master's student in Human Rights at University of Minho)
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The Portuguese Presidency of the Council of the EU 2021 Program reinforces the need to strengthen cooperation between Member States in the field of health, to support actions needed to increase the responsiveness of health services to threats to public health.[1] In the debate regarding a “European Health Union” it is important to underscore that mental health is a transversal approach to all health policies. However, despite the many targeted resolutions covering urgent aspects of mental health,[2] the debate on this issue never found its way to a comprehensive European framework.[3] Indeed, it is critical to consider the impediments to mental healthcare, the costs of neglecting mental healthcare, and Covid-19 impact on increasing fatigue and its consequences on mental healthcare.[4]

Above all, it is important to ponder that many mental disorders are shaped, to a large extent, by social, economic, and environmental factors[5] – that is, many of the causes and triggers of mental disorders reside in the Europeans daily life conditions.[6] According to the World Health Organization (WHO), the response to social, environmental, and economic determinants of health requires multisectoral approaches anchored in a human rights perspective. Multisectoral action is central to the SDG (“sustainable development goals”) agenda because of the range of determinants acting upon people’s health – such as socioeconomic status, gender, and other social determinants.[7]

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“All the world began with a yes”: on the EU strategies towards an environmental citizenship

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by Nataly Machado (Master's student in EU Law, UMinho)
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In a year of so many turbulences and uncertainties, the last month of 2020 contained dates that must be remembered and questioned about how is possible to improve what was once idealized and started. These are events that reveal changes in growing recognition of the global climate crisis as well as the EU strategies towards achieving environmental protection. 

1 year ago: on 11 December 2019, the European Commission announced the European Green Deal. It is a response with the objective of tackling climate and environmental-related challenges to transform the EU into the first climate neutral continent by 2050 with a just and inclusive transition, a clean, affordable, and secure energy supply, a modernized EU industry, a clean and circular economy and sustainable and smart mobility, with the protection of biodiversity[i].

5 years ago: on 12 December 2015, the Paris Agreement has signed and, as a legally binding international treaty on climate change, is a landmark in the multilateral climate change, in which all abiding nations commit to undertake efforts to combat climate change, in order to limit global warming preferably to 1.5 degrees Celsius compared to pre-industrial levels[ii].

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Editorial of February 2021

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Alessandra Silveira (Editor) and Alexandre Veronese (Professor at University of Brasília)
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Thoughts regarding the right to deindexation and the weaknesses of the idea of “being forgotten” online – marking the Data Protection Day

28 January 2021 marks the 15th “Data Protection Day” and the 40th anniversary of the Council of Europe’s Convention 108 – the first international legal instrument regarding personal data protection – which was opened for signature on 28 January 1981.

What began as a European celebration is now a yearly commemoration all around the world. This year, to mark the occasion, the Ibero-American Network for Data Protection and the Council of Europe promoted an event targeted to Latin America. It is interesting to know that, coincidentally, the Brazilian Federal Supreme Court (STF) will hear on 3 February a case regarding a type of “right to be forgotten.” This right is the subject inspiring this essay. In light of this fact, it is essential to assess the (jus)fundamental dimension of the right to deindexation and the weakness of the idea of “being forgotten” online.[i]

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The Court of Justice of the European Union is facing a new challenge: compliance with the rule of law or not as a result of the effects of decisions delivered by the Constitutional Court of Romania

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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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1. Some decisions of the Constitutional Court of Romania and the requests for preliminary ruling filed by the courts in Romania

In Romania, the decisions of the Constitutional Court (CCR) have been the subject of endless public discussion in recent years.

Most recently, due to the fact that, according to a press release issued at the beginning of June by the National Anticorruption Directorate, the public opinion found out that, in a number of 801 criminal files regarding the offence of abuse of office, the solution of discontinuance of proceedings was ordered, as an effect of CCR Decision no. 405/2016, according to which, when establishing that the offence of abuse of office was committed, the judicial bodies must take into account only the infringement of the normative prescriptions of the law, and not also the infringement of certain obligations provided by Government decisions or other infra-legal rules. The value of the damage established during the criminal investigation, which has remained unrecovered, according to the Romanian prosecutors, amounts to RON 1,380,564,195, EUR 118,467,830 and USD 25,636,611.

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Short notes regarding the Portuguese presidency of the Council of the European Union: the agreement in principle between the EU and China

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by Pedro Madeira Froufe (Editor)
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Friday, 15 January, marked the first day of the second (relatively general) lockdown in Portugal. At the same time, Lisbon hosted a number of European Commissioners, including the President of the European Commission, Ursula Von der Leyen, for an in-person event with significant political relevance.

The Commissioner’s visit, signaling the beginning of a Member State’s presidency of the Council is, in fact, a tradition. In a manner carrying out some symbolism, this visit to Portugal, by accident coinciding with the second lockdown in the country, can also be seen as a sign of what is expecting the EU in the first semester of 2021. Notwithstanding, the priorities officially set out by the Portuguese presidency, the pandemic narrows down the possible paths. We have to overcome, to remake ourselves, and Europe must keep being Europe, deepening integration (especially now) with pride in the European project.

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Neuro-rights

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by Felipe Debasa (University Rey Juan Carlos, Madrid)
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The history of social evolution is also the history of social rights achievements and in this equation the role of technology must be taken into account. Therefore, we have to ask ourselves whether the technology that exists at any given moment shapes social evolution or whether it is society that creates the technology it needs for its development. We think that it is available technology that shapes society, and in this respect, we could cite how the geographical limits of the provinces in Spain and Portugal were marked according to the technology of displacement existing at the time: the horse. Probably if the limit were set today, it would not be on the basis of the distance a person can travel to and from the place in a single day.

By legal system or law, we are referring to the set of rules that regulate human relations in society and which are imposed by States in a coercive manner. But in the Fourth Industrial Revolution, the era in which social changes occur in a rapid and disruptive manner, the law is also the regulator that allows these social changes to be accelerated or slowed down. Thus, with regard to new technologies, perhaps we could explain why Anglo-Saxon countries implement technology in society much more quickly than Latin countries. Remember Cordeiro, J. L, that in Anglo-Saxon countries what the law does not explicitly prohibit is basically allowed; while in Roman-based legal systems what is not expressly regulated is basically prohibited.

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Editorial of January 2021

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Pedro Madeira Froufe (Editor) and Tiago Sérgio Cabral (Managing Editor)
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Heresy, realpolitik, and the European Budget

1. The negotiation preceding the final approval of the 2021-2027 Multiannual Financial Framework (hereinafter, “MFF” or “Budget”) has marked by a significant number of twists, turns and eleventh-hour surprises. From the beginning this would always be a difficult negotiation. Being the first budget without the UK as a Member State, on one hand there was the need to show a united European Union after Brexit, but, on the other hand, there was the always unpleasant matter of redistributing the bill among remaining Member States.

2. In 2018, the Juncker Commission proposed a Budget with the value €1 135 Billion. Parliament considered the proposal not to be ambitious enough, an made a reinforced “counter-offer”, naming a much higher price for its consent in its November 2018 Interim Report on the Budget. However, in Council negotiations, the proposal was on track to be severely reduced. Plenty of factions were formed around the budget discussion such as the frugals (who wished to cap the budget at 1% of the GNI) or the friends of cohesion (who were not satisfied with cuts or shifting of funds from cohesion). Europe’s farming industry also lobbied against the decline in importance of the Common Agricultural Policy, and especially direct payments in the budget. At the end, things certainly seemed to be going into a pretty disappointing direction. The most likely result appeared to be a non-innovative budget pushed through after plenty of (arguably) petty squabbling.

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Summaries of judgments: Lietuvos geležinkeliai AB v. Commission

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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 (First Chamber Extended Composition) of 18 November 2020, T-814/17, Lietuvos geležinkeliai AB v. Commission

Competition – Abuse of a dominant position – Rail freight market – Decision finding an infringement of Article 102 TFEU – Access by third-party undertakings to infrastructure managed by Lithuania’s national railway company – Removal of a section of railway track – Concept of “abuse” – Actual or likely exclusion of a competitor – Calculation of the amount of the fine – 2006 Guidelines on the method for setting fines – Remedies – Proportionality – Unlimited jurisdiction

Facts

Lietuvos geležinkeliai AB (LG) is a Lithuanian national railway company responsible for the management of the Lithuanian railway and provides rail transport services for freight and passengers. The Lithuanian undertaking Orlen Lietuva AB (Orlen) is specialized in refining crude oil and distributing refine oil products. Both had since 1999 an agreement according to which LG provided to the last undertaking transport services on the Lithuanian rail network, more precisely on the shorter route to Latvia. However, in 2008, following a commercial dispute between both undertakings regarding the rates paid by Orlen to LG for its transport services, Orlen explored the possibility of contracting the undertaking LDZ for rail transport services of its freight to Latvia.

In September 2008, LG suspended the traffic on a 19km long section of the shorter route to Latvia after identifying a defect in the rail track and later, in October 2008, LG proceeded with the complete removal of the entire track.

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Summaries of judgments: Privacy International | La Quadrature du Net and Others | R.N.N.S. and K.A. v Minister van Buitenlandse Zaken

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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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Judgments of the Court (Grand Chamber) of 6 October 2020 Privacy International (C‑623/17, EU:C:2020:790) and La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791)

Reference for a preliminary ruling – Processing of personal data in the electronic communications sector – Providers of electronic communications services – Hosting service providers and Internet access providers – General and indiscriminate retention of traffic and location data – Automated analysis of data – Real-time access to data – Safeguarding national security and combating terrorism – Combating crime – Directive 2002/58/EC – Scope – Article 1(3) and Article 3 – Confidentiality of electronic communications – Protection – Article 5 and Article 15(1) – Directive 2000/31/EC – Scope – Charter of Fundamental Rights of the European Union – Articles 4, 6, 7, 8 and 11 and Article 52(1) – Article 4(2) TEU

Facts

Following its judgments of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), and of 2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018:788), the ECJ ruled on four requests for a preliminary ruling from jurisdictions in three Member States in proceedings concerning the lawfulness of legislation adopted by those Member States in the field of processing of personal data in the electronic communications sector, laying down in particular an obligation for providers of electronic communications services to retain traffic and location data for the purposes of protecting national security and combating crime.

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