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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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

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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Editorial of June 2017

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by Alessandra Silveira, Editor

Waiting for a federal big bang in EU? Updating the theory of federalism in times of liquid modernity

On May, 22-23, at Nova Law School, Lisbon, took place a conference on “The federal experience of the European Union: past, present and future”, organized by Professor Nuno Piçarra. Sixty years after the signing of the Treaty of Rome and twenty-five years after Maastricht, the EU may be living a true moment of “constitutional mutation” that may dramatically change its identity. Yes, it is possible to re-found the EU without revising the Treaties (as constitutional mutation is nothing new and it has been working since the beginning of the integration) and without committing “semantics imprudences” (avoiding the “blasted” nature of terms such as constitution and federation). Therefore, this is the right time to address the EU federative experience from an historic perspective and to analyse the role which such an acquis may play in the shaping of the future EU. For these reasons, the purpose of that conference was to tackle the following three questions. First, how should we evaluate the EU federative experience, sixty years after the signing of the Treaty of Rome? Second, which are the main challenges facing the EU in the light of its federative experience? Third, do these challenges and respective answers suggest that the European federative dream is over, or just undergoing a new form of development?

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Editorial of May 2017

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by Pedro Madeira Froufe, Editor

Europe: “Ceci c’est pas une pipe!”

Populism has manifested itself not only in the form of public (or at least published) streams of public opinion, but also through the result of (naturally) democratic and legitimate electoral acts. And such cases of populisms materialised in the exercise of representative democracy, generated in the democratic institutional functioning in the context of the rule of law, begin to not be unusual. Deep down, we have seen expressions of populism that acquire power and influence (sometimes determining), with an anti-democratic tendency, created by democracy itself.

Populism appears nowadays as especially adjusted, attractive and intellectually comfortable for a considerable part of the European and American population (in other words, for a large amount of the electorate). There are, as I see it, several reasons, mostly articulated, that cause this relative outbreak now with direct political consequences – that considerably surpass the juridical-constitutional dimension. Those causes are not exclusively attributable to dysfunctions in the dynamics of the democratic institutions.

Such reasons are rooted also in something deeper and concrete than the legal abstraction or the political activity and representation: it has to do, to a great extent, with our current way of life and cosmovision in the context of the technical societies of information and – why not say it – abundance. It should be noted that the intention is not to disregard the existence of reasons attributable to the bad juridical architecture and the bad political functioning (or even the bad performance of politicians); but they are not the only explanatory causes for populist phenomena that disturb democracy….

I won’t reflect or develop, at this occasion, the issue of the causes non-directly juridical, or institutional, of populism. They might also be sociological and cultural tendencies; they could be as well a reaction to extremisms, relativisms and the loss of collective references resulting from the erosion of gregarious institutions, social and natural. That erosion has a lot to do with the overvaluing and a revival of tendencies (neo)hedonist and (neo)utilitarianist which have been potentialized particularly well with the economic growth, modernity (especially in the post-war) and, lately, with the immediacy (created by technology and consequent globalisation). From the legal perspective, such relativism makes it difficult to understand normatively the basic principle of equality, turning it into a principle of the existential relativism: everything is equal to its opposite, blurring and even disabling normative senses, decisions and value options, as everything is equivalent.

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Editorial of April 2017

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by Alessandra Silveira, Editor

What future do we want for ourselves, for our children and for our Union? (as for the 60 years landmark of the Treaty of Rome: please open the fridge!)

Two weeks ago I went to Rome at the European’s Commission invitation for the celebrations of the 60 years of the constitutive treaties of the current European Union. The Commission had decided to gather a group of Jean Monnet chairs from 34 nationalities for a seminar with the title “The future of Europe: a commitment for You(th)” and for a meeting with the EC Vice President, Federica Mogherini, and the (rotating) President of the Council of the EU, Joseph Muscat (Prime-Minister of Malta). It is my duty to share on this blog what I have heard there.

The EC is moving forward with a series of proposals about the management of globalisation and the future of the European finances, but also tending to develop the European social dimension. And, mostly, proposals tending to conclude the Economic and Monetary Union – that takes monetary and exchange sovereignty from the Member States whilst keeps their financial and fiscal sovereignty, what provokes clear imbalances between the more and the less robust economies of the euro zone. Moreover, the Commission presented on 1 March 2017 a White Paper on the future of Europe[i]  – which prospects the changes we will be subject to over the course of the next 10 years and presents 5 scenarios to face the challenges.

After a large debate – that will take place at the European level in the next months and in which the European Parliament, national parliaments, local and regional authorities and the society in general will participate – President Jean-Claude Juncker will address his considerations on the occasion of the speech of the State of the Union, in September 2017, hence contributing with the European Council for reaching its first conclusions by the end of the year and deciding about the actions to take over the period that precedes the European Parliament’s elections, in June 2019.

Naturally, the outcome will also depend on the electoral results in France and Germany – it couldn’t be any different. Not exactly for the narrative of the “French-German axis”, but because 40% of everything that is built with European funds is money from the French or the German tax payer. Is it not of the most elementary coherence that who pays the most should have a word? Anyhow, the European citizens from the other Member States may not be unrelated to the definition of their future – that’s why they need to know the proposals and pressure political decision-makers towards better choices. The European Union is not made by aliens – it’s our representatives who are there: in the Parliament, in the Council, in the Commission.

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Editorial of March 2017

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by Pedro Madeira Froufe, Editor

The future (in White Paper) of Europe, according to Juncker

The European Commission has presented the White Paper on the Future of Europe precisely now in the year of the milestone celebration of 60 years of integration[i] and when it is taking place the technical and diplomatic operation of materialising Brexit.

It is always good and never inopportune to launch a debate on the future of integration, especially when the Union faces a political, economic and social turbulence and, at the external level, the geopolitical indetermination which makes this debate an existential issue. Incidentally, by promoting this debate, it is indispensible that it is rapidly consequent.

The White Paper was then presented at the European Parliament, on 1st March, by the President of the Commission who intended to propose options to strengthen the Union in the post-Brexit. Juncker wanted to highlight, by all means and with certainty before the context and the dark and hesitant note with which the integration and the EU have been marked, a sign/memory of hope: “Our darkest days are still far brighter than any spent by our forefathers imprisoned in Ventotene” [the Italian prison where Altiero Spinelli and Ernesto Rossi were kept during the II World War].

The intention of the Commission and its President is understandable (in fact, he has already announced he won’t be running for a second term). Indeed, this motivating intention of the newly presented White Paper was explicitly affirmed: as we face a Europe post-Brexit, the integration of 28-1 and with risks of not being able to stem possible propensities for new withdrawals, we must quickly define a new path. A definition that will mean necessarily a commitment of deepening the integration, among all. The question is precisely knowing/defining how to advance to this deepening. Furthermore: what does it mean, realistically and consequently today, such deepening? That is, which path to define to the future (nearly) immediate of the Union?

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Editorial of February 2017

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by Alessandra Silveira, Editor
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On the Southern EU countries summit – challenges of democracy in times of austerity and dismay

Last Saturday, 28 January 2017, seven Member States from the south of Europe (Cyprus, France, Greece, Italy, Malta, Portugal and Spain) gathered in Lisbon to send the message of their national public opinions to the public opinions of the other Member States of the Union: surely the EU has to fight terrorism and to adopt a cohesive migration policy but such issues cannot bypass the attention towards the economic problem. It is a clamour of the Southern Europe in the regard that economic convergence becomes priority in the EU’s strategy through policies that create financial capacity in the euro zone and the development of European programmes to support investment. In the horizon, there would be solutions which involve a larger risk sharing – as the adoption of common taxes, an European system of bank deposit guarantee, common debt issue (eurobonds) as well as policies of positive discrimination in favour of indebted Member States that fulfil the adjustment rules.

The message of the citizens from the south of Europe holds that they advanced in the structural reforms and budgetary consolidation as much as it was possible (and the results in Spain and Portugal, mostly, are clear). But under the current circumstances of strong indebtedness and high unemployment it’s impossible to carry on without some relief from the financing constraints. Otherwise the Mediterranean societies will be driven to a situation of social rupture with unpredictable consequences, considering the populisms that lurk around. All that is inserted in a broader debate that the European institutions are facing on how to produce more jobs and better economic performance so that the European citizens can again see the European integration as an asset in their lives. It wasn’t for a different reason that in the first session of January the European Parliament approved a report on the Social Pillar (here). In the same regard, in March the European Commission will submit proposals aiming at reinforcing the social rights – that is, the access to minimum wage and minimum insertion allowances, access to a compulsory health insurance, extinction of unpaid internships, etc. In a year in which there are elections in several Member States, the strengthening of social protection means a European strategy to hinder the adhesion to populist movements.

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Editorial of January 2017

 

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by Joana Covelo de Abreu, Junior Editor
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New year’s resolutions: digital single market in 2017 – the year of interoperability

Digital Single Market is one of the major political goals for EU and its Member States since digital tools have shaped, for the past last decade, how economy behaves and how economic growth is relying on IT tools. In fact, digital economy can create growth and employment all across our continent. On the other hand, digital mechanisms cover almost every economic field, from transportation to clothes, from movies to sports since online platforms have the ability to create and shape new markets, challenging traditional ones.

The Digital Agenda for Europe (DAE) is one of the initiatives under Europe 2020 Strategy and it aims to promote economic growth and social benefits by achieving the digital single market. So it is named as one of the secondary public interests that must be pursued by European administration – both national public administrations (when they apply EU law and act as European functioning administrations) and European institutions and, in that sense, especially national public administrations must feel engaged to promote this end and objective, otherwise if those are the ones to firstly resist to innovation, Internal Market adaptation to new framework standards will suffer and economic prosperity in Europe can be undermined.

Therefore, EU has created several mechanisms to foster interoperability solutions that would bring together institutions, national public administrations, companies and individuals. In this context, interoperability stands for “the ability of disparate and diverse organizations to interact towards mutually beneficial and agreed common goals, involving the sharing of information and knowledge between organizations, through the business processes they support, by means of the exchange of data between their respective ICT systems”. It demands and implies an effective interconnection between digital components where standardization has an essential role to play in increasing the interoperability of new technologies within the Digital Single Market. It aims to facilitate access to data and services in a protected and interoperable environment, promoting fair competition and data protection.

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Editorial of December 2016

European Parliament in Greece on May 18, 2016

by Mariana Canotilho, Editor
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‘Listen! Your brother’s blood cries out to me from the ground’

The 6th EASO Consultative Forum Plenary took place in Athens on 28-29 November 2016. I took part in it, as an academic, interested in EU law, and a volunteer working with refugees. A feeling of deep frustration seemed to be shared by most of the attendants (academics, NGO’s workers, EU and UN agencies’ representatives). What is being done is not enough. It is too slow, too bureaucratic; the legal framework is either insufficient or absurd and counterproductive.

EASO is the European Asylum Support Office. It plays a central role in the implementation of the EU Migration agenda and the new hotspot approach. It is the European agency more focused on the specific problems of refugees, trying to strengthen the practical cooperation among Member States on the many aspects of asylum, and providing practical and technical support to Member States and the European Commission, especially to those whose asylum and reception systems are under particular pressure.

However, it can only do so much. The meagre means don’t help, but neither does the competence set, nor the legal framework being applied. The most worrisome feature, repeatedly questioned by NGOs, UN agencies and volunteers is the ‘safe country of origin’ criteria. As part of the European Agenda on Migration, the Commission proposed on 9 September 2015 to establish a common EU list of safe countries of origin that would enable fast-tracking of asylum applications from citizens of these countries, which are considered ‘safe’ according to the criteria set out in the Asylum Procedures Directive and in full compliance with the principle of non-refoulement. This might seem a reasonable idea. However, the criteria are so strict, that countries like Turkey and Afghanistan are considered safe based on their ‘stable democratic system and compliance with international human‐rights treaties’. As this does not stop people from fleeing war and human rights violations, it only aggravates the problems, creating a group of ‘second-class refugees’, who cannot even apply to the relocation mechanism.

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