The importance of the European Banking Authority in harmonising the credit moratorium regime

by Marina Barata (Master's in Law)

The pandemic outbreak caused by COVID-19 and the government measures taken by several European Union countries to address or mitigate the spread of the disease had, and continue to have, dramatic consequences for the economy.

Individuals and companies were affected by the economic crisis arising from the successive states of confinement, which created situations of default, even if in some cases temporary, of their financial obligations.

This possible and imminent lack of liquidity on the part of debtors would have a devastating impact on credit institutions, since loans defaults would lead to an increase in the number of defaulters and greater and heavier capital requirements for institutions.

For this reason, credit moratoria were implemented broadly by most of the European Union’s Member States.

Traditionally, a moratorium is the granting of an extension of a line of credit’s payment period, whereby the payment of the instalments is suspended for the period during which the moratorium lasts and the deadline for their full payment is extended for the same period. In the expression of the law, the moratorium is the deferment of the fulfilment of the beneficiaries’ obligation towards the banking system.

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Options for keeping the Common Agricultural Policy within the Green Deal

by Rafael Leite Pinto (Master in EU Law – University of Minho)

1. Common Agricultural Policy (CAP) goals within the Green Deal

Presented in 2019, the Green Deal intends to pave the road for a sustainable European Union, cutting emissions by 40% until 2030 and achieving carbon-neutrality by 2050. At her first State of the Union speech, commissioner Ursula Von der Leyen updated the 2030 goal to 55%, following the Parliament’s goal of cutting emissions by 60%.  Within the Green Deal, the Commission revealed several strategic plans including the “Farm2Fork Strategy” and “Biodiversity Strategy”. These plans unveiled the most ambitious goals ever when it comes to reducing the environmental impacts of food production, such as a 50% reduction in pesticide use until 2030; 50% reduction in soil nutrient loss; 50% reduction of antibiotic use in animal farms; increase of the total share of organic farming land to 25%; establish 30% of land and sea as protected areas; plant 3 billion trees; halt and reverse the decline of pollinators; and invest 20 billion euros per year on biodiversity.

Despite the bold target setting, several issues related to the implementation of the necessary measures have been raised. Mainly the compatibility of the proposed Common Agricultural Policy post-2020 and the established goals. The first proposal by the Commission, published in 2018 showed some improvement in agri-environmental measures but was largely classified as insufficient[i],[ii] even for the less demanding goals at the time. In its “How the future CAP will contribute to the EU Green Deal” document, the Commission refrained from further developing the proposal, repeating the previously announced measures. That said, a later published Staff Working Document[iii] concluded that the proposed CAP could have a potential contributory effect to the Green Deal goals, as long as it was approved by the Parliament and the Council in the exact terms proposed, or more demanding ones. Problem is, historically, CAP proposals are diluted in the trilogue and this time was no different. At the end of 2020, a final agreement was reached, and the new CAP was voted in what has been classified by NGO’s as “a kiss of death” for nature in Europe[iv]. Both, the Parliament and the Council voted to soften the proposed agri-environmental measures leading to public outrage and campaigns such as “#votethisCAPdown” and “scrapthisCAP”. The World Wildlife Fund (WWF) accused the European Union’s institutions of ignoring the Green Deal and the evidence when it comes to agriculture’s environmental impacts[v]. For Greenpeace, the new CAP represents the death of small farmer’s and possibly the Green Deal[vi].

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The transversality of mental health in a “European Health Union”

Alessandra Silveira (Editor) and Maria Inês Costa (Master's student in Human Rights at University of Minho)

The Portuguese Presidency of the Council of the EU 2021 Program reinforces the need to strengthen cooperation between Member States in the field of health, to support actions needed to increase the responsiveness of health services to threats to public health.[1] In the debate regarding a “European Health Union” it is important to underscore that mental health is a transversal approach to all health policies. However, despite the many targeted resolutions covering urgent aspects of mental health,[2] the debate on this issue never found its way to a comprehensive European framework.[3] Indeed, it is critical to consider the impediments to mental healthcare, the costs of neglecting mental healthcare, and Covid-19 impact on increasing fatigue and its consequences on mental healthcare.[4]

Above all, it is important to ponder that many mental disorders are shaped, to a large extent, by social, economic, and environmental factors[5] – that is, many of the causes and triggers of mental disorders reside in the Europeans daily life conditions.[6] According to the World Health Organization (WHO), the response to social, environmental, and economic determinants of health requires multisectoral approaches anchored in a human rights perspective. Multisectoral action is central to the SDG (“sustainable development goals”) agenda because of the range of determinants acting upon people’s health – such as socioeconomic status, gender, and other social determinants.[7]

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The Court of Justice of the European Union is facing a new challenge: compliance with the rule of law or not as a result of the effects of decisions delivered by the Constitutional Court of Romania

Dragoș Călin (Judge at the Bucharest Court of Appeal and co-president of the Romanian Judges' Forum Association)

1. Some decisions of the Constitutional Court of Romania and the requests for preliminary ruling filed by the courts in Romania

In Romania, the decisions of the Constitutional Court (CCR) have been the subject of endless public discussion in recent years.

Most recently, due to the fact that, according to a press release issued at the beginning of June by the National Anticorruption Directorate, the public opinion found out that, in a number of 801 criminal files regarding the offence of abuse of office, the solution of discontinuance of proceedings was ordered, as an effect of CCR Decision no. 405/2016, according to which, when establishing that the offence of abuse of office was committed, the judicial bodies must take into account only the infringement of the normative prescriptions of the law, and not also the infringement of certain obligations provided by Government decisions or other infra-legal rules. The value of the damage established during the criminal investigation, which has remained unrecovered, according to the Romanian prosecutors, amounts to RON 1,380,564,195, EUR 118,467,830 and USD 25,636,611.

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Short notes regarding the Portuguese presidency of the Council of the European Union: the agreement in principle between the EU and China

by Pedro Madeira Froufe (Editor)

Friday, 15 January, marked the first day of the second (relatively general) lockdown in Portugal. At the same time, Lisbon hosted a number of European Commissioners, including the President of the European Commission, Ursula Von der Leyen, for an in-person event with significant political relevance.

The Commissioner’s visit, signaling the beginning of a Member State’s presidency of the Council is, in fact, a tradition. In a manner carrying out some symbolism, this visit to Portugal, by accident coinciding with the second lockdown in the country, can also be seen as a sign of what is expecting the EU in the first semester of 2021. Notwithstanding, the priorities officially set out by the Portuguese presidency, the pandemic narrows down the possible paths. We have to overcome, to remake ourselves, and Europe must keep being Europe, deepening integration (especially now) with pride in the European project.

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The “speciality” of Social Rights: guarantees of public employment in the Portuguese Constitution before European Union Law

by Ricardo Sousa da Cunha, PhD (JUSGOV/UMinho, ESG/IPCA)

The Constitution of the Portuguese Republic (CRP) enshrines in article 47.º, n.º 2 a guarantee of public employment after a public tender that has been challenged in the application of European Union Law by the domestic courts.

This constitutional guarantee was the basis for the decision of the Constitutional Court n.º 368/00, of 11 July 2000, which upheld the challenges on the constitutionality of legal provisions (art. 10.º, n.º 2 of Law n.º 23/2004, of 22 June, and art. 14 of DL n.º 427/89, of 7 December) determining the nullity of labor contracts of public entities with civil servants that had not been selected by a public tender. The basis for this decision was the fulfilment of the constitutional principle of equal sharing of public benefits and costs as a consequence of the principle of the rule of law.

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European citizenship in the recent JD judgment: on the public reason of the “Union based on the rule of law”

by Alessandra Silveira (Editor) and Nataly Machado (Master's student in EU Law, UMinho)

“This is a time to take part
Time of parted humans (…)
The laws are not enough
The lilies do not arise from the law”
[i]
(“Our time”, Carlos Drummond de Andrade, 1902-1987)

In a poem written during the horrors of the Second World War, the Brazilian poet Carlos Drummond de Andrade depicted one of those historic moments in which people and institutions must take up a political position, to take sides[ii]. At a time when the European Union “is going through an unprecedented public health crisis, to which the Member States must answer by demonstrating equally unprecedented solidarity[iii], in the JD case, the Court of Justice of the European Union (CJEU) was asked about the extent of the social assistance which a host Member State must provide to a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.

This judgment helps us to unravel the public reason of the European Union, i.e., the criteria/standards by which we can seek the legitimacy of the exercise of power. As John Rawls explained, “[t]he idea of public reason specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another. In short, it concerns how the political relation is to be understood[iv].

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The “mandatory” contact-tracing App “StayAway COVID” – a matter of European Union Law

by Alessandra Silveira, Joana Covelo de Abreu (Editors) and Tiago Sérgio Cabral (Managing Editor)

1. During the previous week there as been plenty of controversy regarding a proposal by the Portuguese Government to make the installation of the App “StayAway COVID” (“App”) – a mobile contact-tracing application designed to fight the pandemic – mandatory for large sections of the population. While the Government appears to have backed down from this idea (for now) the issue of European Union Law (“EU Law”) has been surprisingly absent from most of the debate around a measure of this nature, even though it should be front and centre and precedes even the issue of constitutionality.

As we will show in this text, it is difficult to argue against the conclusion that this subject should be considered as a matter of EU Law – and, consequently, that this is a question of fundamental rights protected by the European Union (“EU”). In the EU’s legal framework, privacy and personal data protection are fundamental rights enshrined within Article 16 of the Treaty on the Functioning of the EU and Articles 7 and 8 of the Charter of Fundamental Rights of the EU (CFREU). Since it is a matter regulated at EU level, the EU’s standard of fundamental rights’ protection is applicable before and above even the national constitutional standards of protection[i]. So, this is not just a Portuguese constitutional problem that can be solved in the light of the Portuguese Constitution – it is an issue of relevance to all European citizens which needs to be resolved in the light of the EU´s (jus)fundamental standards (see Article 51 CFREU).[ii] It is important to be aware that the Court of Justice of the EU (“ECJ”), in the past, struck down constitutional provisions from Member States to ensure the adequate protection of fundamental rights of privacy and personal data protection[iii]. This is because all Member States do not have the same level of (jus)fundamental protection.

2. Under the current legal framework in the EU, enforcing the use of any contact-tracing application to the general public (or to large sections of the general public such as the entire population inserted within the labour market, academia, schools and public administration) would always face some serious challenges.

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The poor relation of tax harmonisation in the European Union – Direct Taxation

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 by Irene Isabel das Neves, Associate Judge, President of the Administrative and Fiscal Courts of the Northern Area (Portugal)

In the field of direct taxation, European law lacks concrete regulation, which leads to a lack of tax harmonisation, as opposed to indirect taxation, namely with the Value Added Tax (VAT) and Excise Duties (ED). However, several directives and the case law of the Court of Justice of the European Union (CJEU) itself are establishing a set of “harmonising” dynamics enforced at the level of direct taxation on the income of companies and individuals. In parallel, measures have been implemented to prevent and eliminate tax evasion and double taxation.

The proper functioning of a European internal market assumes a level playing field, i.e., it depends on tax neutrality arising from the standardisation of corporate taxes. The internal market is in fact the meeting point for European demand and supply: in this market, tax disparities disrupt trade and commerce, because even when similar products are involved, the most heavily taxed goods are less competitive and less attractive to consumers (distortion by demand); similarly, in the absence of uniformity of taxes, the choice of location of businesses within the Union may be linked to tax considerations (distortion by supply).
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Pandemic and dystopia

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 by Joana Aguiar e Silva, Professor at the School of Law, UMinho


We have been following the reflections that Giorgio Agamben has been sharing on the page of the Italian publisher Quodlibet, regarding the pandemic we are experiencing. Without really contesting the political decision that determined the quarantine regime in Italy, the philosopher of Homo Sacer is shocked by the numbness of a society that so passively accepts successive institutional measures seriously constraining its fundamental rights. Measures that openly contend with the most legitimate cultural and political traditions of the West, based on values of freedom, tolerance and the promotion of human dignity.

The statements he has made regarding the present moment of exception have sparked the most intense debate both on the part of public opinion and on several academic circles. Referring to the invention of a pandemic, he points the finger at the media, which, without due scientific basis, and with populist and demagogic interests, spreads panic in communities far too used to living in a permanent state of fear. Tracing parallels between the pandemic and terrorism, he claims we have been living with the constant fear of the other for far too long: the eternal foreigner, metaphor of an eternal threat, as a potential terrorist or, today, as a potential “infector”. (An)other, the enemy, which is now within us, invisible and silent.
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