Editorial of July 2020

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator


e-Justice in times of COVID-19 – someone pushed fast-forward?
Follow-up on the eUjust Jean Monnet Module “EU Procedure and credits’ claims: approaching electronic solutions under e-Justice paradigm”

We have already stressed the impact new information and communication technologies (ICT) are able to have on justice administration throughout Europe.

In fact, when Digital Single Market was developed, and interoperability was the method adopted, the EU established the need to pursue the paramount of e-Justice.

Insofar, as derived from the Council’s 2019-2023 Strategy on e-Justice, e-Justice paradigm “aims at improving access to justice in a pan-European context and is developing and integrating information and communication technologies into access to legal information and the working of judicial systems” since “[p]rocedures carried out in a digitised manner and electronic communication between those involved in judicial proceedings have become an essential component in the efficient functioning of the judiciary in the Member States” (paragraph 1).

In order to achieve this, the elected method was the one of interoperability, which was firstly recognised in the implementation of e-Government. However, as the time went by, it was elevated to a general principle of EU law, not only relevant on e-Government but also on e-Justice fields (see, on the matter, paragraphs 8 to 11 and 24 of the mentioned e-Justice Strategy), as it was perceived to be the less expensive and the most capable mean to put national digital solutions communicating among each other and to interconnect them to equivalent systems running before EU institutions, bodies and agencies.
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Editorial of June 2020

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 by Carlos Abreu Amorim, Professor of Administrative and Environmental Law, UMinho


The European Green Deal as a model of world leadership in the recovery of Covid-19 crisis

In July 2019, the candidate for President of the European Commission, the German Ursula von der Leyen, presented a program entitled “My Agenda for Europe, Political Guidelines for the Next European Commission 2019-2024”. Concrete goals were set there during her tenure, such as “An European Green Deal”; “An economy that works for people”; “A Europe fit for the digital age”; “Protecting our European way of life”; “A stronger Europe in the world”; “A new push for European democracy”. Those axis were reaffirmed on 1st December 2019, when she took office as president of the new college of commissioners.

Although these priorities are necessarily interlinked and can be considered as similar challenges, we highlight the European Green Deal as a remarkable turning effort in the institutional logics of environmental protection adding a desired projection of the will of the European Union (EU) to assert itself as a world leader in the defense of the values of justice, solidarity and quality of life, amongst which safeguarding the environment is the indispensable background of our times.

This is not the first European plan for environmental protection, of course. The history of the EU’s environmental policy is long, notably since the Paris Summit, held from 19th to 21st October 1972, following the then hopeful and innovative success of the United Nations Conference on the Human Environment, which took place a few months earlier in Stockholm from 5 to 16 June, through the modifications of the Treaties which enabled the express consecration of the protection of environmental values with the Single European Act (1986) until the Treaty on the Functioning of the European Union (2007).[i] In this context, the EU has already approved seven multi-annual environmental action in the field of the environment since  1973, the latter of which was adopted by the Council and Parliament in 2013  to be in force until 2020.
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Editorial of May 2020

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by José Igreja Matos, President of the European Association of Judges


“With all due respect, I have no time for this”. The Hungarian Case

1. The Pandemic Crisis in Hungary. Background.

In Hungary, like in many other countries, the Covid19 pandemic and the envisaged measures to prevent its expansion determined the approval of emergency laws.

The Hungarian Government declared the state of danger on 11 March 2020. On that occasion the power to issue decrees in order to suspend the application of certain laws and to take other extraordinary measures was granted for a period of 15 days, except if the Government – on the basis of an authorization from Parliament – decided to extend the effect of the decree. In effect, on 30 March 2020, this extension has been granted by the Parliament on broad terms: “until the endangering situation cease to exist.”

It is now undisputable the absence of any defined time limit for the extensive powers conceded to the national Government.

In the particular case of the functioning of the courts, on 14 March, the Government declared an extraordinary period of judicial vacations. This means that for the duration of judicial vacation, no regular trial hearing should be scheduled except in urgent court cases. Hearings must be held by videoconference. If the personal contact during the hearing is unavoidable a special protocol were applicable for the protection of health.
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Editorial of April 2020

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by Alessandra Silveira, Editor


Health-related personal data – regarding COVID-19 and digital surveillance

Article 9 of the Regulation (EU) 2016/679 – General Data Protection Regulation (hereinafter, “GDPR”) prohibits the processing of special categories of personal data, amongst them (and the ones relevant for the subject of this essay): genetic data; biometric data for the purpose of uniquely identifying a natural person; and data concerning health. However, this prohibition shall not apply if processing is necessary for the purposes of medical diagnosis; the provision of health care or treatment;  the management of health care systems; or pursuant to contract with a health professional, in accordance to point h), of Article 9/2 of GDPR and under the further conditions established in Article 9/3. In particular, the general prohibition shall not apply if the “processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices”, under point i), of Article 9/2.
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Editorial of March 2020

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by Pedro Madeira Froufe, Editor


An “idea of Europe” – on George Steiner and Brexit

The result of the 2016 UK referendum (Brexit) undoubtedly posed a series of questions and triggered a set of concerns that, in a way, were already underlying European collective thinking – rectius, underlined and involved the dynamics of European integration.

Following the Brexit referendum, many considered (or even predicted) the progressive disintegration of the Union, a contagious effect on the rest of integrated Europe, especially in the face of the emergence of outbreaks of nationalist populism in countries such as Italy, Poland, Hungary, Malta, Spain, as well as the strengthening of these political currents in other Member States – with the already traditional Front National in France, besides Holland and Germany.

However, instead of these forecasts, during the entire negotiation period of the exit agreement, until January 31, 2020, the contagion effect occurred in the opposite direction to what these currents (which bet on the breakdown) supposed. There was a political reinforcement of the Member States’ common position to renew the will to maintain and deepen the integration process. In other words, a position with a single voice from all the remaining 27 Member States, so that, in that plan, Brexit represented – despite everything and until now – a factor of strengthening the union around the need, commonly felt, to maintain the “European dream” (expression by George Steiner, in a posthumous interview, published in the newspaper El País, on February 7, 2020). So, being naturally a disastrous mishap, Brexit can also be a positive event. There are thorns that oblige us, at times, to pay more attention – treating it with more care – to the beauty of the rose (because “there are no roses without thorns”!).
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Editorial of February 2020

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by Pedro Madeira Froufe, Editor
Tiago Cabral, master in EU Law - UMinho


You have been my friend. That in itself is a tremendous thing
[i]

1. Throughout these last few weeks, the final steps necessary to complete the Brexit process were taken, in Brussels. On the 24th January, the President of the European Commission, Ursula von der Leyen, and the President of the European Council, Charles Michel, signed the historic “Brexit deal”. To make it fully official, two steps remained: a) approval by the European Parliament and; b) approval by a qualified majority in the Council. Regarding the European Parliament, indeed, this Institution gave its stamp to the deal by a fairly large margin of 621 votes in favour, 49 against and 13 abstentions, on the 29th of January. Lastly, on the 30th of January, the Council adopted, by written procedure, the decision necessary to conclude the withdrawal agreement.

2. We had plenty of delays and attempts to take Brexit over the line but this time, according to all signs, it will really happen. A quick search through our archives will show the Reader that we had plenty of opportunities to write about Brexit (and will probably keep writing during the transition period and beyond), but this editorial is, in itself, a moment of closure.
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Editorial of January 2020

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by Tiago Cabral, master in EU Law - UMinho


Legislative Initiative for the European Parliament: A Wish for 2020

1. It is challenging to argue that the selection of Ursula von der Leyen for President of the European Commission (hereinafter “EC”) was the result, in any conceivable way, shape or form, of a victory by the European Parliament (“hereinafter “EP”) in the traditional power struggle between the Institutions. The spitzenkandidaten (lead candidate), a process which the EP swore that it would uphold, was left completely broken by the selection. It also served as a reminder that the “election” of the President of the EC is, if we rigorous in our analysis, a nomination by the European Council (hereinafter “ECON”) where the EP has veto power but is highly unlikely to use it. In fact, in a remarkable twist of fate, the ECON ended not only choosing the President of the EC but, arguably, also the President of the EP[i]. Even though there are some positive aspects that we should point out, such as the fact that the new EC will be more gender-balanced, that is certainly not enough to counterbalance the fact that no European citizen cast a vote thinking of, let alone desiring, the coming to pass of the current scenario.

2. Indeed, in a purely result-oriented perspective, the new Commission may go on to do a stellar job, thereby acquiring a high degree of output legitimacy. The College of Commissioners 2019-2024 possesses some worthy names, including two former lead candidates in Vice-Presidents Frans Timmermans and Margrethe Vestager[ii]. However, in terms of input legitimacy, the choice and the procedure leading to the current executive, does not strengthen the EU in any manner. Thereby, and until there is a broader reform of the European electoral process, it is necessary to search for other manners to widen the EU’s legitimacy.
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Editorial of December 2019

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by João Marques, member of the Portuguese Data Protection National Commission


Portuguese DPA won’t apply the country’s GDPR law

In spite of its nature[i], the GDPR leaves some room of manoeuvre to the Member States. This European legal instrument has even been called a hybrid[ii] between a directive and a regulation, precisely because there is a significant amount of issues where national legislation can in fact diverge from the general solutions the GDPR brings to the table. Although such leeway is not to be misunderstood for a “carte blanche” to the Member States, there is nevertheless a relevant part to be played by national legislators.

From the definition of a minimum legal age for children’s consent to be considered valid for its personal data to be processed (in relation to information society services), which can vary between 13 and 16 years of age, to the waiver on fines being applied to the public sector (Article 83, 7), there is a vast array of subjects left for the Member States to determine. In fact, a whole chapter of the GDPR[iii] is dedicated to these subjects, namely: Processing and freedom of expression and information (Article 85); Processing and freedom of expression and information (Article 86); Processing of the national identification number (Article 87); Processing in the context of employment (Article 88); Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 89); Obligations of secrecy (Article 90) and Existing data protection rules of churches and religious associations (Article 91).

Additionally, matters of procedural law, according to the Principle of Conferral (Article 5 of the Treaty on the European Union) are almost entirely left for Member States to regulate, with few exceptions such as the deadlines and the (in)formalities of the reply to a data subject rights request (Article 12) and, most notably, the one-stop shop procedure (instated in Article 60) and all its related and non-related issues that are undertaken by the European Data Protection Board, the new European Union Body provided by the GDPR (section 3 of Chapter VII).

The task that lied ahead of the Portuguese legislator, concerning the national reform of the Data Protection Law[iv], was therefore demanding but framed in a way that should have helped steer its drafting in a comprehensive and relatively straightforward manner[v].

The legislative procedure in Portugal took some time to be jumpstarted and it wasn’t until the 22nd of March 2018 that a proposal from the government was finally approved and forwarded to the Parliament, as this is a matter of its competence under Article 165(1)(b) of the Portuguese Constitution.
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Editorial of November 2019

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU


“Does Britain have a great future behind it?”: The stress of Brexit on a (Dis)United Kingdom

Introduction

Whatever the results of the British general election on 12 December 2019, Brexit will have major implications for the populations and governance arrangements of the four nations – England, Scotland, Wales and Northern Ireland – and their continuing membership of the United Kingdom (UK). The present author has already discussed the constitutional implications of a vote to leave the European Union (EU).[i] This discussion instead will briefly highlight how the results of that referendum and the ensuing three years or so have increasingly led two of the smaller “devolved” nations (England makes up over 85% of the UK’s total population of some 66.5 million people) to reassess their position in the UK.

The Brexit referendum itself of June 2016 revealed both inter-nation and intra-nation division. According to the figures,[ii] majorities in England and Wales voted to leave, while most voters in Scotland and Northern Ireland (as well as Gibraltar) opted for remain. Yet even these results are more nuanced than first appear: London also voted to remain as did some other cities (e.g., Bristol, Leeds, Liverpool, Manchester, Newcastle) though by differing margins. Moreover recent research[iii] has shown that in Wales, areas with predominantly Welsh-speakers had voted to remain (as did Cardiff) while many of the 21% English-born voters had voted leave. The picture in Northern Ireland was no less complex: there, the nationalist community voted overwhelmingly for remain, while the unionist community voted largely (though much less decisively) for leave.

Northern Ireland

Of the four nations, this is the one most directly affected by Brexit since it will be the only part of the UK with an external border with the EU (Ireland). It is also the only devolved nation, according to the 1998 Good Friday/Belfast Peace Agreement, that has in effect the legal right to secede from the UK, once a referendum has been held. In fact the most intractable issue in the Brexit negotiations has proved to be finding a solution to the Northern Irish trilemma: fulfilling the UK Government’s promise to leave the EU customs union and single market; to preserve British “territorial integrity”; and to continue its commitment to the peace agreement. However, leaving the customs union and single market would have meant the re-imposition a hard (or physical) border between the North and the South of the island of Ireland, entailing checks and customs duties: this represented for all parties a direct threat to the peace agreements. A way forward out of this trilemma was needed in order to avoid (or at least minimise) the immense social and economic dislocation implicit in a no-deal Brexit; this presented the negotiators with an immense task.
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Editorial of October 2019

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 by Tamara Álvarez Robles, Lecturer at the University of Vigo


On the reform of national law on data protection: the special incorporation of digital rights in Spain

The reform of the Spanish Organic Law on Data Protection (LO 3/2018), to adapt it to the General Regulation of Data Protection has introduced together with the European requirements a catalogue of digital rights. Title X “Guarantee of digital rights” has meant, undoubtedly one of the biggest novelties to data protection regulations. It is composed of a set of Articles, from 79 to 97, which present, for the first time in the Spanish national legislative sphere, the new generation of digital rights[i], inter alia, right to Internet neutrality, right to digital security, right to digital education, protection of minors on the Internet, right to rectification on the Internet, right to privacy and use of digital devices in the workplace, right to digital disconnection in the workplace, right to digital testament.

The inclusion in-extremis of the present Title X, of digital rights, through amendment of the Congress of Deputies dated April 18, 2018, responds to the fundamental importance, to the ever-present and dominating reality of the Internet, which reaches all spheres of our lives. That is why, Organic Law 3/2018 in section IV of the Preamble already points to the involvement of public authorities through the provision of public policies (Article 9.2 SC) in order to make effective the catalogue of digital rights based on the Principle of Equality (Article 14 SC), stating that: “it is the responsibility of the public authorities to promote policies that make effective the rights of citizens on the Internet, promoting the equality of citizens and the groups in which they are integrated in order to possible the full exercise of fundamental rights in the digital reality”.
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