Editorial of January 2016

On January 11, 2016January 11, 2016 By officialblogunioIn EditorialsLeave a comment

OLYMPUS DIGITAL CAMERA

by Mariana Canotilho, Editor

▪

‘The inclusion of the other and the fall of the Empire’

The word of the year 2015 was ‘refugee’. It is quite amazing how seven letters can actually encompass the sea of problems the European Union is facing, which will almost certainly be prevalent throughout 2016.

Aylan Kurdi died at our doorstep in the beginning of September. Before him, thousands of other migrants had already drowned in the Mediterranean, but it took the powerful image of a dead child lying on the sand for the Europeans to address the problem. Hundreds of volunteers mobilized to help their fellow humans, who ran away from war and misery. But although individuals acted, according to their possibilities, the EU institutions seem helpless, almost paralyzed. The Union struggled to reach an agreement about the reception and support to the refugees; some Member states refused the proposed quotas’ system. Hungary’s parliament voted to deploy troops to repel refugees from its border, deepening divisions with the rest of the EU. The common mechanisms negotiated have proven almost useless until now. Very few refugees have been resettled. 2016 began with yet another picture of a dead child, while trying to reach safety and peace, and with the alert from the former United Nations High Commissioner for Refugees, António Guterres: the EU has failed, and only traffickers are managing the migrants’ influx.

There is a growing and worrying incapacity, within the Union, to “include the other”, to use a classical expression of J. Habermas. In fact, the refugees’ crisis is only the worst, more serious symptom, of a larger problem: the loss of the European social project, the abandonment of an idea of Europe as an inclusive and plural community of equals. With this phenomenon comes the loss of hope in the Union’s institutions, trapped between the unwillingness of some and the incapacity of others to find reasonable political solutions to people’s problems.

Under this scenario, citizens are turning to other, quite unsettling, options. Extreme right-wing parties are gaining followers and votes all over Europe (France, Hungary and Poland are good examples of this), without a decisive institutional reaction from the EU, even in common matters, and in a striking contrast with the way the Greek crisis was handled.

Nationalism and separatism are rising. No later than 2017, the UK will hold an in-out referendum about the Union. An “out” vote will have unpredictable consequences and may be the end of the European project as we knew it: the “fall of the Empire”. Therefore, the biggest challenge for the time to come is to reinvent the EU. To build European politics based on hope and on values such as solidarity, diversity and rule of law, rather than fear and exclusion. Only Europe can save itself. Will it succeed?

Picture credits: Michael Gubi

[We also invite you to take a look at the Portuguese elections aftermath as commented by Sérgio Maia Tavares Marques, here.]

Editorial of December 2015

On December 3, 2015December 18, 2015 By officialblogunioIn EditorialsLeave a comment

‘ Paris and Europe, between a rock and hard place’

by Pedro Madeira Froufe, Editor

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The French Government informed the Council of Europe that, from now on, it would assume the risk of disrespecting the European Convention of Human Rights (ECHR) regarding the required measures to fight terrorism.

Point made: France, in a “state of emergency” (declared in November 14 by the French Government) admits the derogation of some of the rights enshrined in the ECHR. Article 15 ECHR allows the legitimate possibility for the Contracting States to derogate from the rights provisioned in the Convention “in time of war or other public emergency threatening the life of the nation any High Contracting Party (…) to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law”. Note, however, that, according to paragraph 2 of Article 15, in any case, derogations of Article 2 (right to life), Article 3 (prohibition of torture), Article 4/1 (no one shall be held in slavery or servitude) and Article 7 (principle of legality) will be admitted.

Within this context, it is important and only natural to question the decision of the French Government in the light of the underlining obligations of the European integration. Article 4/2 TEU states that “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security”. This provision must be, however, articulated with Article 7/1 TEU: there is always the possibility, in the institutional and functional framework of the EU, that the Council, acting by the 4/5 majority of its members, verifies the existence of “clear” risk of violation of the values mentioned in article 2 (TEU) among which it is stated the backbone of the European construction “respect for human rights, including the rights of persons belonging to minorities”.

Well, there is, therefore, (formal) legal legitimacy in order to adopt the derogatory measures of some of the rights protected by the ECHR. And, beyond that (always insurmountable) legal legitimacy, there is a general recognition – in particular in the international community – that France has all the legitimacy to react and engage a war of State, both internally and externally, against groups of organized killers, as the ones who perpetrated the terrorist attack in Paris, on November 13, and the self-proclaimed “Islamic State”. Moreover, for the first time after the II World War, there is in regard to those groups a consensus “post November 13” among the permanent members of the UN Security Council. For the first time, in many years, there is a joint action and clear legitimacy, in the light of international law, regarding an armed intervention and the need of a unison action. Between September 11 of 2001 and November 13 of 2015, the will to deal with terrorism together without condition or reserve (considering the terms in which it operates and refines its barbaric nature nowadays) matured, and was less an acknowledgment of a necessity.

It has been understood – I believe – that the erroneous nature of the (pseudo) justifications that so often were given, based on circumstantial interests and political affections, always ended (even if that was not the intention) benefiting the terrorist agenda: the condemnations followed by “but”, the justifications intellectually inconsequent based on a socio-tributary analysis of the “class struggle”, the justifications based on economic reasons, on the flawed integration of immigration, of the “problem of the West”.

In the French case, I was always perplex with this type of condescending narrative based on the environment of the Parisian “Hlm” (social housing with moderated costs), when the Portuguese (as well as the Spanish) emigrants, in the decades of the 60s and 70s, integrated themselves from the “bidonville”. Like someone once said, we have to face the problem as organized and global banditry. Period. Even the qualification/denomination of what happen as terrorism opens the door to a glimmer of a justification to a vaguely understandable (although not admissible) cause. Therefore, there is no room for any possible justification or excuse to what Paris lived and experienced on November 13.

Resuming, however, to observations of a more obvious legal nature, it is important to highlight the risk that we face: we are between a rock and a hard place in terms of the fundamental balance between the adoption of the necessary and efficient measures to fight terrorism, at a global scale, and the preservation of the rule of Law which, in the end, justifies that same fight.

The media exposed some examples of the measures undertaken by the Parisian authorities, making clear in what that risk might translate into. For instance, a local authority from the North of France justified the adoption of a measure that bans the sale of alcoholic beverages in glass bottles, between 8 pm and 8am, with the state of emergency and the terrorist attacks.

A recurring question: the possible suspension of “Schengen”. At the bottom of this issue, the possible setback in terms of the free movement of persons and, necessarily, in one of the mains traits of the road towards the concretization of the European citizenship…

It is important to face this question (which already generated hasty reactions). The reinforcement of the cooperation and efficiency of the action of the European intelligence is of the utmost importance. But this does not imply, necessarily, a setback – at least in terms of principles – on the free movement of persons, of citizens among Member States. When the main operational bases of terrorism (banditry) are placed in European territory and are perpetrated by citizens from Member States it is important to avoid hasty reactions always … and especially when we are between a rock and a hard place.

Social citizenship: quo vadis? – Inaugural Editorial

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

by Alessandra Silveira, Editor

and Sophie Perez Fernandes, Junior Editor

▪

The European citizenship as the “the fundamental status of nationals of the Member States”[1] has been shaping the process of integration itself. Unquestionably linked to the protection of fundamental rights, European citizenship has always been focused on the approximation of the legal status of the nationals of Member States, providing the legal base to the eradication of legal gaps of protection and, therefore, contributing to the further development of the integration process. However, recent case law of the ECJ seems to be influenced by the current political-economic dynamics that characterise the current crucial momentum that we are facing, raising perplexity and concern when compared to past rulings which compose the jurisprudential acquis in matters of citizenship and fundamental rights – mainly in what concerns citizens that move in the Union seeking jobs and the maintenance of the status of migrant worker.

The Dano ruling of 2014[2] represents a setback in regard to the previous case law of the ECJ regarding the granting of special non-contributory cash benefits to citizens who are not economically active. Despite the fact that, in this concrete case, a residence certificate of unlimited duration was previously granted to the applicant – a fact apparently disregard by this ruling – the national court considered that the main proceedings concerned persons who could not claim a right of residence in the host State by virtue of Directive 2004/38/CE. The ECJ accompanied the reasoning of the national court stating that the access to social benefits is dependent on the residence in the host Member State as set out by Article 7 of the mentioned Directive – i.e. sufficient economic resources and health insurance[3]. The goal would be to prevent economically inactive citizens from becoming an unreasonable burden on the social assistance system of the host Member State[4], or from using the host Member State’s welfare system to fund their means of subsistence[5]. Admitting otherwise, according to the Court, would go against the objectives of the Directive[6].

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