The “speciality” of Social Rights: guarantees of public employment in the Portuguese Constitution before European Union Law

by Ricardo Sousa da Cunha, PhD (JUSGOV/UMinho, ESG/IPCA)

The Constitution of the Portuguese Republic (CRP) enshrines in article 47.º, n.º 2 a guarantee of public employment after a public tender that has been challenged in the application of European Union Law by the domestic courts.

This constitutional guarantee was the basis for the decision of the Constitutional Court n.º 368/00, of 11 July 2000, which upheld the challenges on the constitutionality of legal provisions (art. 10.º, n.º 2 of Law n.º 23/2004, of 22 June, and art. 14 of DL n.º 427/89, of 7 December) determining the nullity of labor contracts of public entities with civil servants that had not been selected by a public tender. The basis for this decision was the fulfilment of the constitutional principle of equal sharing of public benefits and costs as a consequence of the principle of the rule of law.

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Summaries of judgments: Casino, Guichard-Perrachon and AMC v. Commission |Intermarché Casino Achats v. Commission | Les Mousquetaires and ITM Entreprises v. Commission

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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Judgments from General Court (Ninth Chamber Extended Composition) of 5th October 2020: T – 249/17, Casino, Guichard-Perrachon et Achats Merchandises Casino SAS (AMC)/Comission, T- 254/17, Intermarche Casino Achats/Comission e T- 255/17, Les Mousquetaires e ITM Entreprises/Comission

Competition – Administrative Procedure – Decision ordering an inspection– Illegality of Article 20 of Regulation (CE) n.º 1/2003 – Right to an effective remedy – Principle of equality of arms – Obligation to state reasons for the inspection decisions – Right to inviolability of the home – Sufficient strong evidence – Proportionality – Refusal to protect the confidentiality of data relating to private life

Facts

After receiving information about the existence of change of information between several undertakings and associations of undertakings from the food and non-food distribution sector the Commission in the scope of the powers conferred by Article 20, paragraphs 1 and 4 of Regulation (CE) no 1/2003 adopted, in February 2017, several decisions requesting inspections to several undertakings.

Within the scope of those inspections, Commission visited the undertakings offices and obtained copies of the IT records.

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Editorial of December 2020

Alessandra Silveira, Joana Covelo de Abreu and Pedro Madeira Froufe (eUjust Jean Monnet Module Members - https://eujust.direito.uminho.pt). 

Brief insights on e-Justice paradigm and the de facto digitalization of justice in the European Union – answers for the plural crisis (the endemic and the pandemic)?

e-Justice is a paradigm that has been strengthened since the adoption of the latter Council’s e-Justice Action Plan and Strategy for the period of 2019-2023, where digital platforms and technological instruments are perceived as the way to further deepen reciprocal trust in the EU administration of justice (following previous arrangements made under e-Justice Action Plan 2014-2018).

However, as the Commission points out, the “[e]xperience with the COVID-19 crisis shows the need for justice systems [to] function under challenging circumstances” since, insofar, “[e]ffective access to justice in the EU is hampered by paper exchanges and the need to be physically present” and it needs to be scalable to a new development environment as “[d]igital technologies have the potential to make justice systems more accessible and efficient”.

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Summaries of judgments: Presidenza del Consiglio dei Ministri v BV | Cali Apartments

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 16 July 2020, Presidenza del Consiglio dei Ministri v BV, Case C-129/19, EU:C:2020:566

Reference for a preliminary ruling – Directive 2004/80/EC – Article 12(2) – National schemes on compensation to victims of violent intentional crime guaranteeing fair and appropriate compensation – Scope – Victim residing in the Member State in which the violent intentional crime was committed – Obligation for the national compensation scheme to cover that victim – Concept of “fair and appropriate compensation” – Liability of Member States in the event of a breach of EU law

Facts

This request for a preliminary was made in proceedings between the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy) and BV concerning the claim of non-contractual liability brought by BV against the Italian Republic for loss alleged to have been caused to BV owing to the failure to transpose Council Directive 2004/80/EC, of 29 April 2004, relating to compensation to crime victims (OJ 2004, L 261, p. 15) into Italian law.

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European citizenship in the recent JD judgment: on the public reason of the “Union based on the rule of law”

by Alessandra Silveira (Editor) and Nataly Machado (Master's student in EU Law, UMinho)

“This is a time to take part
Time of parted humans (…)
The laws are not enough
The lilies do not arise from the law”
[i]
(“Our time”, Carlos Drummond de Andrade, 1902-1987)

In a poem written during the horrors of the Second World War, the Brazilian poet Carlos Drummond de Andrade depicted one of those historic moments in which people and institutions must take up a political position, to take sides[ii]. At a time when the European Union “is going through an unprecedented public health crisis, to which the Member States must answer by demonstrating equally unprecedented solidarity[iii], in the JD case, the Court of Justice of the European Union (CJEU) was asked about the extent of the social assistance which a host Member State must provide to a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.

This judgment helps us to unravel the public reason of the European Union, i.e., the criteria/standards by which we can seek the legitimacy of the exercise of power. As John Rawls explained, “[t]he idea of public reason specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another. In short, it concerns how the political relation is to be understood[iv].

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The EU and geopolitical Europe: from Belarus to Nagorno-Karabakh

by Sandra Fernandes (Professor at UMinho/Researcher of the CICP)

Two years ago, I commented on the gloomy prospects for the engagement of the European Union (EU) in its Eastern (and Southern) neighbourhood. Looking East, the challenges for the EU were “closely related to the degradation of the relations with Russia and to the unsatisfying deliveries of the European Neighbourhood Policy in the partner countries (Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine)”. Current developments in most of these countries take this observation to a higher level of seriousness. From the societal upheaval in Belarus to the existence of overt violent conflict in Eastern Ukraine and the enclave of Nagorno-Karabakh, the EU sees unrest in all its Eastern vicinity. In parallel, relations with Moscow have not happening in any way that could be considered positive dialogue.

In this context, and considering the democratic revindications of the Belarus people, much is awaited from a big neighbour that defends liberal values and the respect for the United Nations Charter. Brussels is expected to act in order to support the will of an oppressed population, mostly as the use of violence by the Lukashenko regime against its own population has been internationally condemned. So far, the Union has adopted sanctions against individuals directly involved in repression and intimidation and built plans for economic support for a democratic Belarus. The most visible stance consists in the non-recognition of the presidential election results of August 9.

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Editorial of November 2020

Alessandra Silveira, Editor and holder of the Jean Monnet Chair in European Union Law at UMinho is one of the promoters of this manifesto that is being republished here. To find more about the other promoters please follow this link. To read the original manifesto click here. 

The Universal Right to Internet Access Manifesto

Against digital and cognitive gaps

The pandemic caused by COVID-19 has revealed various strengths and weaknesses of international education and communication systems and it is, without a doubt, in these crises, where, out of sheer need for survival, inventiveness and ability to create new opportunities to ensure progress.

The fact that more than 40% of the world population has been forced to confine themselves in their homes for a long period of time, a situation unknown until now for current generations, has forced a change in the life strategies for a large group of people, families and companies.

One of the consequences of this crisis has been the significant intensification of the use of Internet as a means of communication, by increasing videoconferencing tools unimaginable just four months ago, or the constant use of mobile telephones, both to keep in touch with family and friends, and to be able to follow certain work routines linked to this new way of working or simply for leisure reasons. Similarly, it has highlighted the importance of social networks in shaping climates of opinion.

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Artificial intelligence: 2020 A-level grades in the UK as an example of the challenges and risks

by Piedade Costa de Oliveira (Former official of the European Commission - Legal Service)
Disclaimer: The opinions expressed are purely personal and are the exclusive responsibility of the author. They do not reflect any position of the European Commission

The use of algorithms for automated decision-making, commonly referred to as Artificial Intelligence (AI), is becoming a reality in many fields of activity both in the private and public sectors.

It is common ground that AI raises considerable challenges not only for the area for which it is operated in but also for society as a whole. As pointed out by the European Commission in its White Paper on AI[i], AI entails a number of potential risks, such as opaque decision-making, gender-based bias or other kinds of discrimination or intrusion on privacy.

In order to mitigate such risks, Article 22 of the GDPR confers on data subjects the right not to be subject to a decision based solely on automated processing which produces legal effects concerning them or similarly significantly affects them[ii].

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The “mandatory” contact-tracing App “StayAway COVID” – a matter of European Union Law

by Alessandra Silveira, Joana Covelo de Abreu (Editors) and Tiago Sérgio Cabral (Managing Editor)

1. During the previous week there as been plenty of controversy regarding a proposal by the Portuguese Government to make the installation of the App “StayAway COVID” (“App”) – a mobile contact-tracing application designed to fight the pandemic – mandatory for large sections of the population. While the Government appears to have backed down from this idea (for now) the issue of European Union Law (“EU Law”) has been surprisingly absent from most of the debate around a measure of this nature, even though it should be front and centre and precedes even the issue of constitutionality.

As we will show in this text, it is difficult to argue against the conclusion that this subject should be considered as a matter of EU Law – and, consequently, that this is a question of fundamental rights protected by the European Union (“EU”). In the EU’s legal framework, privacy and personal data protection are fundamental rights enshrined within Article 16 of the Treaty on the Functioning of the EU and Articles 7 and 8 of the Charter of Fundamental Rights of the EU (CFREU). Since it is a matter regulated at EU level, the EU’s standard of fundamental rights’ protection is applicable before and above even the national constitutional standards of protection[i]. So, this is not just a Portuguese constitutional problem that can be solved in the light of the Portuguese Constitution – it is an issue of relevance to all European citizens which needs to be resolved in the light of the EU´s (jus)fundamental standards (see Article 51 CFREU).[ii] It is important to be aware that the Court of Justice of the EU (“ECJ”), in the past, struck down constitutional provisions from Member States to ensure the adequate protection of fundamental rights of privacy and personal data protection[iii]. This is because all Member States do not have the same level of (jus)fundamental protection.

2. Under the current legal framework in the EU, enforcing the use of any contact-tracing application to the general public (or to large sections of the general public such as the entire population inserted within the labour market, academia, schools and public administration) would always face some serious challenges.

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Editorial of October 2020

by Filipe Marques, President of MEDEL (Magistrats Européens pour la Démocratie et les Libertés)

Rule of Law in the European Union: the danger of a systematic change of the concept?

In the last day of September 2020, the European Commission publicly presented the first Rule of Law Report, intended to give an overview of the situation of Rule of Law in all twenty-seven EU Member States[i]. In the introductory words of this document, it is stated the Rule of Law, together with fundamental rights and democracy, “are the bedrock of our societies and common identity”.

The report came out just two weeks after President Ursula Von der Leyen, in her first State of the Union speech before the European Parliament Plenary, recognized that “the last months have also reminded us how fragile [Rule of Law] can be” and pledged to “always be vigilant, to care and nurture for the rule of law” [ii].

The current and ongoing situation in the EU, however, is much too serious to be tackled only with nice words in a speech or data collected in a report. The events and signs coming directly from the ground clearly show us that the time to act is now, before we reach a point of no return.

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