“Out is out” (including in relation to the Mediterranean diet…). On the Article 50 of the European Union Treaty in the light of the federative principle of European loyalty

On July 7, 2016July 7, 2016 By officialblogunioIn Comments1 Comment

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by Professor Alessandra Silveira, Editor

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Since Abraham Lincoln faced the hardest constitutional crisis of the USA (War of Secession, 1861-1865) the modern legal theory of federative systems had taken for granted that the hypothesis of secession was repelled. And then the Canadian Supreme Court reframed the data. In the country, in 1995, a referendum was called on the unilateral declaration of secession of Québec. The proposal of separation was reject by a short difference – 50,58% of the votes in a turnout of 94%. Following the referendum the federal government appealed to the Supreme Court to know if a unilateral secession, addressed in a popular consultation not approved by the remaining States, would violate the Constitution. The Supreme Court ruled that a unilateral secession with those features would infringe the Constitution. However, if in a different referendum, when answering a “clear question”, the “clear majority” of the Québécoise casted an unequivocal will of not integrating Canada anymore, then the remaining States and the federal government would be bonded to negotiate with Québec the conditions for its withdrawal because unwritten constitutional principles determined it (Reference re Secession of Quebec, [1998] 2 S.C.R. 217). In the aftermath the federal government passed in the Canadian Parliament “clear” rules tending to regulate and calculate the “price” of withdrawal, especially to safeguard the legitimate interest of the remaining States and their population – as a result, Québec still integrates the federation. Punch line: in a federative system there are neither free lunches nor free exits.

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Subsidiarity, democratic deficit and posting of workers

On June 10, 2016June 10, 2016 By officialblogunioIn CommentsLeave a comment

by Professor Alessandra Silveira, Editor

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The Lisbon Treaty introduced new contents to the role of national parliaments in the EU decision making process alongside the respect for the principle of subsidiarity by the European institutions. According to article 5, No. 3, TEU under the scope of non-exclusive competences, the Union only intervenes if the objectives of certain action (i) cannot be sufficiently achieved by Member States (efficiency criterion) and (ii) can be better achieved by the EU due to its dimension or intended effects (added value criterion).

So, since the entry into force of the Lisbon Treaty, Protocols No. 1 and No. 2 annexed to the treaties allow that national parliaments evaluate the compliance of the European draft legislative acts with the principle of subsidiarity – and if they conclude that there is incompliance, the respective reasoned opinion shall address this understanding. Under the ordinary legislative procedure, if the reasoned opinions represent at least a simple majority of the votes allocated to the national parliaments, the European Commission proposal must be reviewed. It can be amended, withdrawn or sustained (Article 7, No. 3, Protocol No. 2).

Nevertheless, it is important to test the national parliament’s arguments in order to confirm if (i) they have legal grounds to claim the infringement of subsidiarity and (ii) the result of such parliamentary intervention can be regarded as positive to the EU legal system as a whole. Even though this proposed exercise does not compromise, theoretically, the democratic relevance of national parliament’s participation in the EU’s decision making process, it can point out some fragilities concerning (i) the appreciation of the European integration process by national parliamentary authorities and (ii) the adequacy of the EU democratic deficit narrative and the instruments created so far to face it.

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Pharmaceutical Crime and E-Commerce: a Portuguese Overview

On May 12, 2016June 10, 2016 By officialblogunioIn CommentsLeave a comment

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by João Fidalgo Jorge, Lawyer and Collaborating Member of CEDU

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In 2003, the European Court of Justice declared that a comprehensive ban on the mail-order sales of freely available pharmaceuticals was contrary to European Law (Case C-322/01, 11 December 2003 – the so called “Doc Morris decision”). In reaction to this decision, the German parliament went beyond the court’s ruling, and the Statutory Health Insurance Modernization Act 2004 (“GKV-Modernisierungsgesetz vom 01.01.2004”) opened the door to mail-order and online sales of prescription drugs as well. Some 10 years later, the Research Project on Internet Commerce and Pharmaceutical Crime (ALPhA – http://www.alpha.uni-osnabrueck.de) was born in Osnabrück, under the coordination of Prof. Dr. Arndt Sinn: part of the research programme of the German Federal Ministry for Education and Research (BMBF) on public safety, this joint project is funded by the “Public Safety and White-Collar Crime” branch of the programme. The project builds on the ministry’s stated aim of using the results of the research programme to preserve and increase public safety in the face of increasing white-collar crime without compromising the principles of the rule of law.

In Portugal, the Doc Morris decision effects generated some legal and policy discussions on the subject. This reaction ultimately led to new legislation which provides that retail pharmacies (and similar sales points) may now provide the remote selling of medicines, through their websites – even to consumers currently living in other member states of the European Union, under the conditions laid down on Article 9-A of the Decreto-Lei nº 307/2007 (from 31/08). The use of an electronic website depends on prior notification to the National Institute of Pharmacy and Pharmaceuticals (INFARMED), which created and is responsible for the management of an official list of all licensed Internet pharmacies. The INFARMED then monitors the Internet presence of pharmacies engaged in remote selling, in collaboration with the pharmacies themselves and also other entities (such as the criminal police), according to Articles 9-A and 45 of the mentioned DL 307/2007 – as well as the rules established by the Portaria nº 1427/2007, from 02/11.

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A realpolitik, inside view of the Social Security negotiations in the EU on “Brexit”

On May 4, 2016May 6, 2016 By officialblogunioIn CommentsLeave a comment

by Elisabete Silveira, Director of Negotiation and Coordination of International Instruments Unit of Directorate-General of Social Security in Portugal

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After long and difficult discussions, the Heads of State or Government, meeting within the European Council of 18-19 February 2016, adopted a Decision concerning a New Settlement for the United Kingdom within the European Union.

It will become effective on the date the United Kingdom informs the Council about its decision to remain a member of the EU and will require secondary legislation which the Commission will only propose after a successful referendum. Should the result of the referendum in the UK be for it to leave the EU, the set of arrangements agreed by the European Council will cease to exist.

The Decision covers four sections: Economic Governance, Competitiveness, Sovereignty and Social Benefits and Free Movement.

Focusing only on the last section, it should be noted that, following the taking effect of the Decision, the Commission will submit proposals for amending two important Regulations: Regulation (EC) N.º 883/2004 on coordination of social security schemes and Regulation (EU) N.º 492/2011 on freedom of movement for workers within the EU.

The amendment of Regulation (EC) N.º 883/2004 is intended to give Member States, as regards the “exportation of child benefits to a Member State other than that where the worker resides, an option to index such benefits to the conditions of the Member State where the child resides. This should apply only to new claims made by EU workers in the host Member State. However, as from 1 January 2020, all Member States may extend indexation to existing claims to child benefits already exported by EU workers. The Commission does not intend to propose that the future system of optional indexation of child benefits be extended to other types of exportable benefits, such as old-age pensions.”

These arrangements raise many doubts and perplexities.

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The draft has been lifted-off!

On January 25, 2016March 16, 2016 By officialblogunioIn CommentsLeave a comment

[THIS IS THE THIRD AND FINAL PART OF A COMMENT ON THE PORTUGUESE ELECTIONS AFTERMATH. PLEASE CHECK OUT PART I AND PART II .]

by Sérgio Maia Tavares Marques, Jurist and 
student of the Master's degree in EU Law of UMinho

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At last the Comission can examine the Portuguese Draft Budgetary Plan for 2016 and put an end to the “failure-not-failure” cul-de-sac we have been following for the past couple of months. Now the Brussels economic experts will look into the official document. Based on Regulation (EU) No 473/2013 (here), the Comission has up to 45 days (that normally would be between Oct., 15th to Nov., 30th, according to articles 6 and 7) to adopt an opinion on the Member State´s plan as well as an overall assessment of the budgetary situation and prospects in the euro area as a whole (2016 version here).

For countries subject to the preventive frame of the TSCG, this opinion considers the compliance with the Country-Specific Recomendations (CSRs) and the Medium-Term Objectives (MTO).

For Member States under the corrective Excessive Deficit Procedures (EDP), the Opinion on the budget plan takes EDP´s measures for public expenditures highly into account. Portugal is about to leave the EDP, which was designed to finish in 2015 – as long as it is not extended. Other Member States on EDP are France, the UK, Spain, Ireland, Croatia, Cyprus, Greece and Slovenia, with different deadlines for correction (respective drafts here).

If the Commission is not satisfied with the plan, it shall request a revised draft to be presented within 3 weeks at the longest. A new opinion over the second version shall be adopted within the same three weeks period.

So, to make sure the Euro economic policy is coordinated, the draft budgetary plans are graded as either compliant, partially compliant, or at risk of non-compliance.

The first cul-de-sac was not a failed road for Portugal. Out of prudence and strict lawfulness, it had better not enter a second one with the budget (here) now. It might not be a road as safe. At this point it all comes down to the merit of the measures, figures and spreadsheets presented in the document, such as the 126% public debt, the 2.6% deficit, the 2.1% growth and the 1.3% (GDP) expenditure reduction.

My selection of relevant inputs on the topic:

Context

Prime Minister Antonio Costa said Monday his executive would submit its draft budget for 2016 this Friday — three months after the deadline set up in the EU’s rulebook, Jornal de Negocios reported.

Centeno added that the financial intervention in the bank Banif at the end of 2015 is “making it difficult” for Portugal to exit the excessive deficit procedure this year — as had been forecast.

“I underline that this is the first time such a thing has happened. It is something we can understand given the complicated political situation, but it is also regrettable. We ask that the new Portuguese government sends us their plan as soon as they are in office”, Moscovici said.

Updates

Portuguese Prime Minister Antonio Costa is confident that Brussels will approve his 2016 draft budget, which will both cut the deficit and “turn the page on austerity” to boost economic growth with higher disposable incomes.

The budget deficit will be 2.6 percent of gross domestic product this year, narrower than a previous target of 2.8 percent and less than a 3 percent shortfall in 2015, according to the plan.

Portugal PM will roll back austerity.

Picture credits: ‘Euros’ by JWPhotography2012.

We invite you to also read PART I and PART II of this article.

A time of challenges for our Union

On January 21, 2016March 2, 2016 By officialblogunioIn CommentsLeave a comment

Find below some links to interesting opinion articles on some of the challenges that the EU is currently facing:

Europe isn’t working for this generation, via The Guardian (by Matteo Renzi the prime minister of Italy)

The economic consequences of austerity, via the New Statesmen (by Amartya Sen)

Can Germany Be Honest About Its Refugee Problems?, via the The New Work Times (by Jochen Bittner)

We also invite you to take a look at our editorial of this month here.

General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 2]

On January 8, 2016January 8, 2016 By officialblogunioIn CommentsLeave a comment

[This is the second part of a comment on the Portuguese elections aftermath, the author will soon provide the final part of this article – PART 3.]

by Sérgio Maia Tavares Marques, Jurist and 
student of the Master's degree in EU Law of UMinho

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Previously, I have argued that the seeming failure of Portugal for not presenting the draft for the annual budget within the deadline fixed in the TSCG could not be considered a failure. I pointed that the reason for that fact (the delay/failure) was the political negotiation process in the country that it was not yet concluded at that time following a post electoral circumstance never seen before. Days have come and gone and on 26th of November a new Socialist + Leftist parties government took over. Mr. António Costa came to office in replacement of the right wing coalition led by PSD and the former PM, Mr. Pedro Passos Coelho, who had been originally nominated by the President. However, a motion of rejection was voted and approved by the left wing parties altogether and a new cabinet was formed and got in place.

As I underlined, my point was that it was not possible, nor advised for Portugal, to send the European Commission a budget draft when an upcoming administration (with its expenditure priorities) was still unknown. The country could not commit itself to figures that would only be mythical and/or misplaced. Plus and more importantly, I reasoned (in constitutional pluralist terms) that the appointment of a new government, as a direct result of the people´s will expression, can only be considered part of a national identity. In that sense, it falls within the scope of article 4/2 TEU. Therefore, the EU should encourage the demos and not persecute it. Nonetheless, Mr. Valdis Dombrovskis pressured Portugal with possible judicial actions and the situation was put on hold.

Continue reading “General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 2]” →

Intellectual Property in the European Union

On December 18, 2015December 18, 2015 By officialblogunioIn CommentsLeave a comment

by Professor Luís Couto Gonçalves, Integrated Member of CEDU

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Copyright

In what concerns the copyright, the (now) European Union made a first harmonization effort following a position taken by the European Commission, on its 1998 Green Paper[1] which intended to reinforce the protection of the copyright and related rights.

Based on this orientation, several directives were adopted: on the legal protection of computer programs[2], on rental right and lending right and on certain rights related to copyright in the field of intellectual property[3]; on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission[4]; on the harmonization of the term of protection of copyright and certain related rights[5]; on the legal protection of databases[6]/[7].

The circumspect nature of these legal instruments was intended in order to avoid the establishment of fundamental principles of copyright. It is true, however, that if we read them combined it is possible to extract some general principles or, at least, the genesis of some of the principles that would appear expressly recognized in the following directives.

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General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 1]

On November 16, 2015December 18, 2015 By officialblogunioIn CommentsLeave a comment

[This is the introductory part of a comment on the Portuguese elections aftermath, the author will provide further updated analysis on the topic.]

by Sérgio Maia Tavares Marques, Jurist and 
student of the Master's degree in EU Law of UMinho

▪

Before the third and final beep sounds – which is in theatrical and operistic traditions the last notice for the foyer to be vacated and for seats to be taken – I must briefly point out that my goals with these contributions and this category are not properly rigorous from a scholar vantage point. Academically strict writings are to be found on Reviews and Essays. What we are looking for here on News and Comments is inter alias to encourage free and open debate, a reflection start-up so to speak. So… take your seats and take part!

i) As in every premiere, it seems only suitable to meta-analyse what lies before us. UNIO Blog comes to stage at just the right time to promote academic discussions involving the European Union and its legal/political system throughout society. In the path of the finest European tradition, the Centre of Studies in European Law of University of Minho (CEDU) deserves a project of this kind due to its acclaimed reputation. Research centres of European DNA are known for their critical autonomy and for spreading ideas, for scientific freedom and for intercultural pluralism. Concerning both their agents and their contents. Know this, all readers, authors, partners and critics, such values are in the core of this blog. They move it.
Some of the greatest journals and reviews of the world keep a platform like this one in order to enhance more informal, open and free considerations amongst their collaborators. Unlike the American experience in which it is absolutely and placidly accepted the express and public defence of a certain line, stream or current of thought as well as its interests´ protection to which the think tank adheres, this space is the respectful democratic house of the most diverse scientific-academic theoretical orientations.

ii) Let´s move to the substantial matter of this comment.
The subject has been on the news. Portugal has been seeing a complex election afterwards situation. Not only politically, but also historically and legally/constitutionally. For the first time in 40 years, – that is since democracy was re-established with the dissolution of the Salazarista regime – the winning party is not able to present a stable government proposal. The coalition between right-wing PSD (89 elected members) and CDS (18) does not hold majority in the Parliament and it has failed to accomplish some sort of agreement (by abstention, for instance) with the Socialists (86) and Leftists (19 + 15 + 2). Altogether the latter group can compound an absolute majority to form the government.
Apart from questions concerning the legitimacy of an alliance shaped only after the elections and the anti-EU agenda of leftist parties, the issue that interests us here is the formation of a new government.

Continue reading “General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 1]” →

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