Category: Editorials

Editorial of May 2018

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 by Joana Whyte, Junior Editor and Associate Lawyer at SRS Advogados
▪


The German Court’s decision on Mr. Puigdemont’s EAW and its similarities to a Swiss Cheese

The European Arrest Warrant (EAW) represented one of the most important developments of the Area of Freedom, Security and Justice whose creation and development with the Amsterdam Treaty became one of the European Union’s objectives.

The EAW abolished the traditional process of extradition and made it simpler for European Member States to request the arrest and surrender of a requested person for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

The EAW is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to in the 1999 Tampere European Council as the “cornerstone of judicial cooperation in both civil and criminal matters within the Union”.

According to the principle of mutual recognition, a decision adopted by a judicial authority of a Member State (the issuing Member State), on the grounds of its internal legislation, must be recognised, accepted and executed by the executing Member States’ judicial authorities, even though the same case, according to the executing Member States’ law, could lead to a different outcome.

The EAW also abolished the principle of double criminality for a list of 32 crimes established in Article 2(2) of the EAW’s Framework Decision (Council Framework Decision 2002/584/JHA).

This is fundamentally where the issue on Carles Puigdemont case arises.
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Editorial of April 2018

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 by Joana Whyte, Associate Lawyer at SRS Advogados and member of CEDU
▪


Fashionistas rejoice, it’s the end of Geo-Blocking!

In a vote of 557 for and 89 against, Regulation 2018/302 of the European Parliament and the Council of 28 February 2018, which addresses unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market, was approved. The new set of rules will apply from December 2018.

The end of Geo-Blocking has been a priority for the EU in the creation of a digital single market. This Regulation aims to address unjustified geo-blocking by removing certain barriers to the functioning of the internal market.

This is good news not only for fashion consumers but also for consumers of other services/ industries. The new set of rules also applies to the offline provision of services by hotels and car rental companies and the online sale of event tickets, as well as to the provision of electronic services (cloud services, data storage, website management).

Put simply, Geo-blocking is the practice that prevents consumers in one Member State from buying a good or service sold online in another Member State. This practice has been harming fashion consumers by preventing them from purchasing from websites and apps from other Member States and also by the application of different general conditions of access to goods and services to customers from other Member States – e.g. refusal to deliver abroad, to accept payment, rerouting and website access blocks.
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Editorial of March 2018

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 by Tiago Cabral, member of CEDU
▪

Homeopathic Democracy: The European Power Struggle over the Spitzenkandidaten

1. According to article 17(7), TEU “taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members”. There are several issues in this article, some of them we even had the opportunity to discuss before.

2. In fact, when talking about the President of the European Commission (EC) it is quite a stretch to state that there is an “election” by the European Parliament (EP). Politically inspired wording notwithstanding, the truth is that the European Council (ECON) holds most of the cards in the selection of EC’s President and the balance of power tends to favour this institution. There are also some notorious similarities between the position of the EP in relation to the ECON in the selection of the President of the EC and the position of the EP in relation to the Council in the consent legislative procedure. While it is possible to argue that there is an “indirectly-indirect election”[i], we believe that it would be more accurate to state that the Parliament approves and has veto power over the ECON’s choice.

3. However, the 2014 elections to the EP brought with them a rather interesting innovation: the Spitzenkandidaten (leading candidate). This procedure aims to give “direct” or at least “quasi-direct” democratic legitimacy to the President of the EC by tying the nomination to the EP’s elections. First the political parties choose their leading candidate, then the people vote, then the ECON and EP obey their will by confirming candidate chosen by the citizens[ii]. There is some debate on who should be nominated by the ECON and approved by the EP, the candidate from the party who won the most seats in the elections or the candidate from the coalition best placed to guarantee a passing majority. Under the current Spitzenkandidaten rules the second choice seems to make the most sense. Nevertheless, it seems likely that in the current European political climate the candidate from the biggest party will also be the best positioned to achieve a solid majority.
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Editorial of February 2018

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 by José Igreja Matos, President of the European Association of Judges/Vice-President of the International Association of Judges
▪

Populism and Judiciary

Judicial independence faces today, particularly in Europe, new threats emerging from populist political regimes.

Accepting the fundamental axiom that in a State based upon the Rule of Law, it is always up to the Courts to guarantee the effectiveness of human rights, and there is a strong operative connexion between the exercise of human rights – or the correspondent imposition of duties – and the mission conducted by the judicial systems.

This detected closeness explains the present decline of judicial independence in different regions, particularly within EU geographical space.

One the most interesting findings when analysing those countries deriving to populist and authoritarian policies is the immediate option, since the very early stages, for an vigorous attack on the independence of the judiciary propelled by surgical legislative reforms in the area of Justice. Recently in Poland, for instance, three different laws discussed in Parliament focused in nuclear foundations of judicial careers – Supreme Court, High Judicial Council and Presidents of First Instance Courts.
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Editorial of January 2018

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by Sergio Maia, Managing Editor
▪


The European Pillar of Social Rights has taken the first steps – and now how far will it make the Union walk?

One year after the end of the public consultation period of the European Pillar of Social Rights (EPSR) that preceded its formal presentation and adoption, it is an inviting, seemingly appropriate time to remark its concrete meanings and consequences. The EPSR and its political and legislative initiatives (such as the adoption of a clarification of the Working Time Directive or the proposals for a Directive on Work-Life Balance and for a Directive on Transparent and Predictable Working Conditions) have started to redesign the materialisation of the social model underlying the public reason of the Union. Those public reason and social model are embedded in Article 3(3), TEU; Article 9, Article 151, TFEU, just to name a few.

According to that set of rules, the Union is bound to full employment, social progress, the fight against exclusion, the promotion of social justice, social protection and cohesion. To sum up, in other words, there exists, I believe, a social democratization rationale behind the objectives of the integration to which the exercise and the enjoyment of citizenship rights and fundamental rights protection are directly associated. This social democratization drives (and must do so) the fulfilment of the economic freedoms as well as the rights enshrined in the CFREU. Without social democratization, the European citizenship and its fundamental rights are worth very little. The case-law of the CJEU in Dano, Alimanovic and Commission v. UK proves just that.

The two aforementioned spindles are in the core of the Union based on the rule of law as the fruition of those rights – i.e., social model – shapes the purposes of the public reason of the European polity. Then, how does the Pillar promote the European social model?

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Editorial of December 2017

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by Alessandra Silveira, Editor
and Joana Abreu, Junior Editor
▪


European Public Prosecutor’s Office, fundamental rights and preliminary reference: disquietudes and expectations

With the establishment of the European Public Prosecutor’s Office (EPPO) [i] (in the different Member States that will adhere to the respective enhanced cooperation), the European citizens will be in touch with national and European authorities regarding the criminal prosecution in the scope of the offences against the Union’s financial interests. This scope may eventually be enhanced  to include serious crimes having a cross-border dimension through a unanimous decision of the European Council in accordance with Article 86(4) of the TFEU. The members of EPPO (European Delegated Prosecutors) are active members of the national Prosecutor’s Office in each Member State to whom will be granted powers of investigation and prosecution with independence. When investigating and prosecuting criminal cases under the competence of EPPO they shall i) act in the interest of the Union as a whole, ii) act exclusively in representation and on behalf of EPPO in the territory of the respective Member State and iii) neither seek nor take instructions from any person external to the EPPO.

It is, therefore, a sort of hybrid institution, completely new in the European structure. This is why it is important to consider the indispensable institutional conditions to its (political and legal) control in the light of the fundamental rights protected by the European legal order. Well, the more the borders between national and European competences are diluted harder it becomes to define the applicable standard of fundamental rights protection in whichever case in question (i.e., the level of protection). According to the division of competences expressed in Article 51(1) of the CFREU, the field of application of the Charter depends on whether or not EU law is being applied in the case. In other words, in the field of application of the EU law the applicable level of fundamental rights protection is the one of the Union, but out of the scope of the EU law the applicable level of protection shall be the one of the national constitution. Hence, to apply the level of protection resulting from the CFREU we must know, beforehand, if the solution of the case falls under the EU law. Indeed, if it was not already difficult to decipher the “riddle of the Sphinx” of the scope of application of the CFREU in the absence of EPPO’s hybridism, everything becomes more complex and sophisticated with it.
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Editorial of November 2017

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by Sophie Perez Fernandes, Junior Editor
▪


The forest fires in Portugal and the EU

The Author of this post took the photo above during a common episode of her daily life, returning from work. While I was waiting for someone I stared at the landscape around me. Sadly, I realized, on that sunny, bright and warm October day, that the surrounding green I’d been accustomed to had partially disappeared. And I photographed it. I will not bother the reader with the reasons – these are personal and subjective. That is not the case of the reasons for its disclosure with this post.

The place photographed will not be revealed. The place is not the point – and not being the point, it is the point. It could be anywhere. That landscape is not only the one I photographed in that spur of the moment. Anyone present in that place, at that moment, was contemplating the same landscape – it was not a matter of me, but of us. And similar landscapes are, sadly, scattered through Portugal today and will remain for a long while – us is so much bigger than that place, at that moment.

And because the forest fires that ravaged Portugal in 2017 are so much bigger than that place (Portugal), at that moment (2017), the European within me was on alert as well.

The forest fires that occurred in Portugal were impressive not only because of their dimension and their impact, but also because of the unusual period of recent occurrences. In addition to the heavy human losses – the number of fatalities tragically exceeds a hundred – and to the equally heavy ecosystemic damage – associated with the loss of biodiversity always linked to any phenomenon of forest degradation/destruction –, the anomalous character of the forest fires recorded on October 15 and 16 also generates awareness to the reality of climate change.

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Editorial of October 2017

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by Joana Covelo de Abreu, Junior Editor
▪


Promotion of internet connectivity in local communities (“WIFI4EU” legislative framework): deepening European Digital Single Market through interoperability solutions

Digital Single Market has become a new political and constitutional calling for the EU since it can promote both economic growth and sustainable development.

Therefore, four researchers – which are, respectively, Editors and Junior Editors of this Blog (Alessandra Silveira, as Scientific Coordinator; Pedro Froufe; Joana Covelo de Abreu, as the responsible for the research deliverable; and Sophie Perez) – were awarded a Jean Monnet Project funding by the European Commission, concerning the theme “EU Digital Single Market as a political calling: interoperability as the way forward”, with the acronym “INTEROP”. This project, with a 2 years’ duration starting on September 2017, is settled on scientific research around administrative interoperable solutions in order to evolve and develop new juridical sensitivities that can rely on interoperable environments, especially concerning debt recovery in the European Union.

Taking into consideration new developments on administrative connectivity, last September 12th 2017, the European Parliament discussed and approved a European Resolution which endorses the necessary legislative alterations, settled on a new Regulation regarding the promotion of Internet connectivity in local communities, universally known as “WiFi4EU”. It will promote the installation of free Wi-Fi spots in public places, squares, municipalities’ facilities, libraries and hospitals. Carlos Zorrinho, a Portuguese Member of the European Parliament (MEP), was the Rapporteur of the resolution, and understood that this solution will promote “neutrality on internet access” despite the geographical location or the economic conditions of the user – “it does not discriminate no one and no territory”. Therefore, “WiFi4EU” is the embryo of the proclaimed European Gigabit Society.

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Editorial of September 2017

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Pile of debt

by Joana Covelo de Abreu, Junior Editor
▪


Effective judicial protection concerning debt recovery: branding the judicial reentrée

The European Union is now living a post crisis’ recovery and, to achieve that, the Commission understood in its 2013 Citizenship Report the European Union was now pursuing two new goals: an economic recovery and a sustainable growth. To meet those political objectives, the European Union adopted Regulation (EU) No. 2015/2421 which revised both European Small Claims Procedure [Regulation (EC) No. 861/2007] and the European order for payment procedure [Regulation (EC) No. 1896/2006]. In fact, both these instruments were reputed, already in 2013, as being able to definitely influence European economic recovery by boosting Internal Market functioning and delivering better observance of fundamental freedoms by protecting those economic agents that interacted in a cross-border context.

The changes brought by Regulation No. 2015/2421 are applicable since 14th July 2017 and, so, as the courts’ recession is going on – for instance, in Portugal this started in the 16th July 2017 and it will end in the 31st August 2017 – the real impact of these legislative precisions are going only to be felt when the judicial réentrée happens.

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Editorial of July 2017

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Machine Life Speed Curb Gear Mechanics

by Maria José Costeira, Portuguese Judge at the General Court of the CJEU

▪

The transposition of the Private Enforcement Directive: a critical perspective

On 26th November 2014 the Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union was approved. That directive, usually called Directive Enforcement, has to be transposed into national law by Member States until the 27th December 2016 (Article 21).

In Portugal, the National Competition Authority (Autoridade da Concorrência – AdC) entity in charge of preparing the transposition, presented, on the 22nd June 2016, the last proposal of a preliminary draft[i] for the transposition, which resulted from a process of public discussion.

Here, I intend to draw attention to some aspects that could be improved in the proposal.

Article 2 of the proposal gives the definition of cartel as “the agreement or concerted action between two or more competing companies which aims at coordinating their competition behaviour in the market or influencing the relevant competition standards through acts such as, namely, fixing or coordinating the prices of acquisition or sell or other conditions of transactions, including in relation to rights of intellectual property, attribution of production or sell quotas, sharing markets and clients, including the concertation in auctions and public procurements, restricting importations or exportations or conducting anti-competitive acts against other competitors as prohibited by Article 9 of the Law nº. 19/2012, of 8th May, and if applicable by Article 101, TFEU”.

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