Category: Editorials

Editorial of July 2019

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Shaking Hands Teamwork Staff Team Handshake

 by Pedro Froufe, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho

▪


Democracy, negotiation, personal ambitions and backroom deals: the moment of truth for the spitzenkandidaten

1. Last year we had the opportunity to write about the spitzenkandidaten procedure for selecting the President of the European Commission (hereinafter, “EC”) and the power struggle that was brewing between the Institutions with the spitzenkandidaten (lead candidate) at its centre. Knowing what the spitzenkandidaten procedure is and how it works is indispensable for understanding the current essay, thus if the reader is not familiar with it, we would ask you take a few minutes to read our May 2018 editorial before continuing.

2. With the Juncker’s Commission term of office about to reach its end (31 October 2019) and with a new European Parliament (hereinafter, “EP”) with a quite different composition starting its work on 2 July second it is time to select a new President of the EC and, in fact, also the Presidents of the European Parliament and of the European Council (hereinafter “ECON”). Moreover, a new High Representative of the Union for Foreign Affairs and Security Policy and a new President of the European Central Bank will have to be selected shortly. As it is possible to recognize there are a plethora of senior and highly influential positions that will be selected by one or both the EP and the ECON in a very short timeframe. This, of course, will lead to difficult negotiations which creates an obstacle for the spitzenkandidaten procedure because it takes out what is, arguably, the most valuable prize from the table before it can even be in play. As we know the EC has a truly European and supranational character and, for many, due to its powers and competences the EC can be seen as the true “executive” power in the European Union. Furthermore, even if the EP and the Council (of the European Union) are the co-legislators and the ECON defines the broad political priorities, it is the EC who has the prerogative of, in most cases, proposing the laws. The European constitutional design means that the balance in power tilts heavily in favour of the Commission.

3. Obviously, the spitzenkandidaten would not be in danger if there was a clear majority in the EP (either by a coalition or a single party) that could impose its lead candidate to the ECON. As we have stated previously, we are not of the opinion that the candidate of the party that got the most seats automatically gets the right to be President of the EC. That is no more than an oversimplification of the procedure and would be only suited for a system with direct elections (which we actually find the ideal solution). The leading candidate of the party with the largest parliamentary representation will, in most cases, be in the premium position to achieve this objective. After all, there is an unwritten rule or, more accurately, a democratic practice that whoever wins the elections, even absent a majority, should get the position or at least get the first opportunity to try to form the necessary coalition. However, we should not forget that democracy, whether in, is national or supranational is first and foremost the pursuit of consensus. The “burden” to find said consensus and build a coalition in the EP that allows him/her to be selected as President of the EC rests on the candidate. If the candidate that got the most votes, but no majority is unable to do and someone else is, it means that someone else is able to command a broader democratically elected coalition and, therefore, having superior democratic legitimacy should be selected instead.
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Editorial of June 2019

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 by Alessandra Silveira, Editor
 and Sergio Maia, Managing Editor

▪


Strengthening the rule of law in the EU on the D-Day 75th Anniversary

On 3 April 2019, the European Commission opened a debate to strengthen the rule of law in the EU and setting out possible avenues for future action. The Commission invited the European Parliament, the European Council and the Council, and the Member States as well as relevant stakeholders, including legal networks and civil society, to reflect on this issue and contribute with concrete ideas on how the rule of law toolbox could be enhanced in the future. Building on this reflection process and the ongoing debate, the Commission will return to this issue with its own conclusions and proposals in June 2019. As first Vice-President Frans Timmermans said, the Union’s capacity to uphold the rule of law is essential, now more than ever. First because it is an issue of fundamental values, a matter of “who we are”. Second, because the functioning of the EU as a whole depends on the rule of law in all Member States. The confidence of all EU citizens and national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU as “an area of freedom, security and justice without internal frontiers”.[i]

On this 6 June 2019, D-Day 75th Anniversary, we add more one reason:  European integration emerged as an anti-fascist response to the collapse of the rule of law in the period between the two World Wars. What is important to highlight now is that all the legal-constitutional construction of the post-war in Europe is based on the idea that democracy, in the absent of the rule of law, becomes the tyranny of majority. Without the rule of law, we have nothing, only the nationalist populism and its disastrous consequences. Nationalist populism knows that, being a form of political communication that attempts to reach its goals by breaking the dialectic connection between democracy and rule of law.  So, as the rule of law can be improperly used, the main question in this context is to know what is the substance of the Union based on the rule of law.
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Editorial of May 2019

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 by Célia Zolynski, Professor of Law at Université Paris 1 – Panthéon-Sorbonne
 and Alexandre Veronese, Professor of Law at University of Brasília

▪


Blockchain and security: an important debate for the legal community (especially from the civil law tradition)*

When we read and listen about the Blockchain technology, its main revolutionary character is the praised new manner by which the users would extract a new kind of trust from the operations endorsed. At some point, some writers even detail its technical design as being trustless. This technology – as some of their enthusiasts say – would therefore make it possible to replace, rather than displace, the trusted third party – an important technical feature that exists in most of the modern designs of private or public relationships – in various kinds of transactions and operations. The Blockchain enables this feature because it makes possible to guarantee the keeping of an unforgeable and updated register of digital records in real time. The technical functions of the Blockchain promise to secure many possible applications. An example is the use of the technology to ensure the integrity of a document or a digital archive over the time by anchoring it in the Blockchain. In addition, it is possible to create Blockchain systems to control or trace the circulation of digital archives and packages and even their usage. The Blockchain technology could therefore be able to guarantee the security of the storage files in the blocks using asymmetric encryption protocols in a peer-to-peer model. However, ten years after the launch of Bitcoin, in 2009, we are still largely in an exploratory phase of that technology. The blockchain and its applications remain immature: technically immature and, we should say, legally immature too. Several difficulties hinder the transition from the small-scale operations to bigger ones. One of the main concerns of the Blockchain technology is the safety of the designed applications. Such issue – the safety of the Blockchain – needs to be more debated than praised in order to avoid some misjudgments and overstatements. Just to begin, we are going to provide a provocative statement: Blockchain does not grant actual and complete security; from itself, the technology – and its prophets – indulge us with the illusion of safe and security. Why? We will divide the text in three parts, in order to pose problems to the Blockchain. First, we are going to describe that some technical issues that are entrenched in the design can be vulnerable to attacks and difficulties. Second, we are going to mention that – in legal terms – the Blockchain registers still will need a third party to be feasible as evidence in the courts. Lastly, we will remark that the so-called “smart contracts” are not contracts after all.
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Editorial of April 2019

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 by Sophie Perez Fernandes, Editor

▪


First steps in a literacy campaign for a European political community – what is the EU based on the Rule of Law?

When one is asked to approach the legal dimension in a panel on the theme «European political community and cosmopolitan literacy»[i], one is confronted with the vastness and multiplicity of the subject, the critical nature of its importance and the overwhelming responsibility of the task… Underlying it are crucial questions about how to approach – in the sense of conceiving, accepting and, above all, living – the European Union as our collective destiny. And the challenge is also to discern the role of the Law in this endeavour aimed at building, revealing the meaning and living in a European political community.

That said, before embarking on an EU literacy campaign, a preliminary step would likely be to undertake what could be called a literacy campaign of the Law. And the reason is obvious: the European integration process is, above all, a process of integration through Law. From the very beginning, the European integration process has sought to «unite the peoples of Europe», to employ the terminology of the Treaties, not by the force of weapons, but by the force of norms – which, to a certain extent, consequently converts jurists into soldiers of the European integration process and of building a European political community – hence the overwhelming responsibility…
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Editorial of March 2019

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 by Allan F. Tatham, Professor at the Faculty of Law of University CEU San Pablo

▪


“Shindler’s Wish” Fulfilled and More? The Possibilities for Re-enfranchisement of UK nationals and EU citizens in a future People’s Vote on Brexit

Introduction

In the afternoon of 25 February 2019, with just over four weeks to go before the country’s expected withdrawal from the European Union, the UK Labour Party leader, Jeremy Corbyn, finally announced his party’s support for a second referendum on the issue.[1] Having already been passed as a resolution by the Labour Party conference in autumn 2018[2] and supported by the majority of party members,[3] it no doubt took the recent resignations of MPs from the party[4] finally to persuade the widely-regarded Eurosceptic Corbyn to swallow the bitter pill for a People’s Vote (PV) on the Brexit deal, “secured” by the cabinet of Prime Minister Theresa May.[5]

However, within the furore caused by his change of heart still hanging in the air, even if (and, at this stage, it is still a very big “if”) the UK Parliament were to vote in favour of a second popular vote, several points will need to be addressed anew.
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Editorial of February 2019

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 by Felipe Debasa, Phd Rey Juan Carlos University, Madrid

▪


IV Industrial Revolution social challenges. The Law, from discipline to tool? Reflections about the European Union

After World War II comes to a change an historical era. It is about the Present World or Present Time as historians point out[i] , or Anthropocene as geologists name. An era with new challenges and also challenges built on the legacy of the millions of dead of the world wars, totalitarianism, and nationalism.

“It is not a time for words, but a bold and constructive act”. With this phrase, Robert Schuman initiated the press conference that May 9th, 1950, in which he presented the document that would give rise to the current European Union. We Europeans are about to celebrate the 70th anniversary of that date that has allowed us to enjoy many things in peace and freedom.

With the change of the millennium, comes another new period dubbed as a IV Industrial Revolution, Industry 4.0 or Era of Technology. “The traditional world is crumbling, while another is emerging; and while we are in the middle and some of us without knowing what to do”[ii].

In 2016, I directed a summer course at the Menéndez Pelayo International University of Santander[iii] on the Future of Employment that was inaugurated by the Minister of the sector in Spain, in which we began to alert of the social challenges and about the tremendous revolution that came over us. We analysed, among other things, the jobs of the future, the digital transformation of companies, the new forms of teleworking, the role of women in this revolution; and so, we are warning of neologism that was about to appear, probably by regulated sectors without competition. And yes, that moment seems to have arrived.
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Editorial of January 2019

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Property Intellectual Copyright Symbol Protection

 by Alexandre Veronese, Professor at University of Brasília

▪


Article 13 and the vigilance dilemma

The first US battles about filtering

In light of the worldwide ongoing debate surrounding legal regimes over internet, in special the recent controversies on amendments proposals to applicable EU rules, such as Directive 96/9, Directive 2001/29 or Directive 2012/28, but most notably Article 13 of the (soon-to-be) Directive on Copyright in the Digital Single Market, it is of utmost importance to seek some perspective. The topic is relevant as much as complex with a range of aspects to consider. For instance, one of the approaches the EU is giving to the matter involves the use of internet (or digital tools in general) for new cultural purposes following the celebration in 2018 of the European Year of Cultural Heritage. In that regard, I had the opportunity to reflect upon this debate alongside Professor Alessandra Silveira, editor of the Blog of UNIO, and other colleagues in an excellent Portuguese podcast. In this post, I intend to shed some light in the global depth of the matter by analysing the American inaugural experience.

At the beginning of the widespread usage of the Internet, the United States society was immersed in a debate about how to deal with offensive content. In the 1990s, Internet had no boundaries and no firewalls to prevent the incoming waves of pornographic and unusual materials. Quickly, a political movement made a strong statement in order to protect American families from that threat. In 1996, the US Congress passed a bill named Communications Decency Act, also known as the CDA. The Bill was signed into Law by the former President Bill Clinton. The CDA was intended to provide an effective system to take down offensive content. Some of the founders of the Internet launched a campaign against the CDA. The now widely famous Electronic Frontier Foundation was the spearhead of the resistance. Until today, we remember the Declaration of Freedom in the Internet, which was written by John Perry Barlow. The major weapon of the resistance was the First Amendment of the US Constitution. Some lawsuits were filled and in a brief timespan the US Supreme Court took down the CDA for it was ruled as unconstitutional. The Supreme Court maintained the long-aged interpretation that the State must be out of any action to perform any possible kind of censorship (Reno v. ACLU, 1997).
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Editorial of December 2018

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 by Sergio Maia, Managing Editor

▪

Multiannual financial framework, budgets and elections: is there room for convergence?

Current status of EU politics barely hides that convergence seems more and more dramatic, as the elections next May are rapidly approaching amidst uncertainty, Brexit and national populisms. Despite the signal Emmanuel Macron attempted to send recently by addressing the German Bundestag – the first French president to do so in 18 years – in favour of unity against chaos, there is little doubt that the moment is of euro-tension, somewhat of pre-storm. Italy is (literally) stepping on the European Commission’s budgetary recommendations; Brexit withdrawal agreement conclusion is an incognita on the British side (there is also the preliminary reference on its revocability under appreciation in CJEU); Steve Bannon is trying to fund extremist right-wing candidates for the European Parliament election; Poland is disguising its real commitment to implement CJEU interim measures; new migration rules are not settled, etc.

On top of that, there is an ongoing negotiation for the next multiannual financial framework (MFF) and in parallel proposals for a Eurozone specific budget as of 2021 – which was the underlying pretext for Macron’s speech at the Bundestag. The original idea of the French president was to equip the Eurozone with a separate budget to assist Member States experiencing instabilities in their economies. In other words, it would serve as a sort of debt mutualisation guarantee in critical times. This was only insidiously mentioned in the Meseberg Declaration, but it was mentioned nevertheless. The motivation for this tool was to provide an enhancement of the general balance between European economies so that the different levels of development in the EMU could be compensated for the benefit of Euro (stabilisation, prices) and trade flow in the internal market.
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Editorial of November 2018

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 by Alessandra Silveira, Editor

▪


In the face of globalised populism, European Union as a kind of “life insurance”

In case C-619/18, Commission v Poland, pending judgment by the Court of Justice of the European Union (ECJ), the European Commission has requested the Court, in the context of interim proceedings, to order Poland to suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges,[i] among other measures.

As the ECJ Press Release No 159/18 briefly explains, on 3 April 2018 the new Polish Law on the Supreme Court entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65. The new age limit applies as of the date of entry into force of that Law. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his/her duties and a certificate stating that his/her health conditions allow him/her to serve, and must be consented to by the President of the Republic of Poland. Thus, according to the Law, serving Supreme Court judges who reached the age of 65 before that Law entered into force or, at the latest, on 3 July 2018, were required to retire on 4 July 2018, unless they had submitted such a statement and such a certificate by 3 May 2018 inclusive and the President of the Republic of Poland had granted them permission to continue in active service at the Supreme Court. In making his decision, the President of the Republic of Poland is not bound by any criteria and that decision is not subject to any form of judicial review. Furthermore, the Law on the Supreme Court gives the President of the Republic of Poland the power to freely decide, until 3 April 2019, to increase the number of Supreme Court judges.

As we know, the Vice-President of the Court, Ms Rosario de Lapuerta, on 19 October 2018, provisionally granted all the Commission’s requests – and Poland must immediately suspend the application of the new Polish Law on the Supreme Court.[ii] The legal basis of such ruling, relying upon judicial independence as a general principle of EU law and as a fundamental right protected in its order, has been built in the recent ECJ case-law, especially in judgments Associação Sindical dos Juízes Portugueses (ASJP) and LM[iii].
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Editorial of October 2018

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 by Vlad Jurje, PhD candidate and Lecturer at Universidad Rey Juan Carlos

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Poland v. Fundamental Rights?

A new episode concerning to the Rule of Law in Poland has recently taken place and the European Commission is very concerned. After the recent reform of the National Council of the Judiciary[i], the Polish Parliament has the capacity to decide when to appoint the member judges that compose it. A fact that seriously undermines the norms and international standards on which the independence of the judicial power in Europe is regulated.

We also highlight the instability that has arisen from the reform of the Constitutional Court in Poland because the interference that the Executive and the Legislative branches have committed put at risk the independence of the judicial power. According to the new law which has come into force, out of the 72 current members that form part of the Supreme Court 27 could be forced to retire, since the retirement age was changed: instead of retiring at 70, the new law would remove men at 65 and women at 60.
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