Category: Essays

The Almaraz debate – it’s not in Spain, it’s not in Portugal, it’s all around…

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by Sophie Perez Fernandes, Junior Editor
▪

The risk society is a non-knowledge society. Ulrich Beck has long demonstrated that the explosion of the nuclear reactor at Chernobyl (26 April 1986) coincided with an «explosion of non-knowledge» in an entanglement that requires a rethinking of the conceptual and institutional constants of the modern world, such as the concepts of rights and human dignity, as well as those of sovereignty and state government[i].

On January 16, the Portuguese government filed a complaint to the European Commission against Spain concerning the construction of a nuclear waste storage facility at the Almaraz nuclear power plant (the news can be found here). Operating since the early 1980s, the Almaraz nuclear power plant is located along the Tagus River about 100 kilometres from Portugal, bordering the districts of Castelo Branco and Portalegre. The construction of the storage facility is intended to extend the operation of the Almaraz nuclear power plant, which has been presenting several problems, especially security problems. Portugal claims that there has been a violation of the EIA Directive, in addition to requesting the suspension of the construction of the Almaraz nuclear waste storage facility.

The EIA Directive – Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 – applies to the assessment of environmental effects of certain public and private projects which are likely to have significant effects on the environment. It updates 4 earlier directives (Directives 85/337/EEC, 97/11/EC, 2003/35/EC and 2009/31/EC) and applies from 17 February 2012. Furthermore, Directive 2011/92 has been amended in 2014 by the Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014. The revised EIA Directive entered into force on 15 May 2014 and Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with it by 16 May 2017. It should also be mentioned that safety of nuclear installations is also regulated by EU law, namely by the Council Directive 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations (transposition deadline expired since 22 July 2011), amended by the Council Directive 2014/87/Euratom of 8 July 2014 (transposition deadline expires the 15 August 2017).

As stated above, Portugal claims that there has been a violation of the EIA Directive. The EIA procedure laid down in this directive can be summarized as follows: i) the developer (the applicant for authorisation for a private or public project which falls within the scope of application of the EIA Directive) may request the competent authority to say what should be covered by the EIA information to be provided (scoping stage); ii) the developer must provide information on the environmental impact (EIA report); iii) the environmental authorities and the public (and, as will be explained below, the eventually affected Member States) must be informed and consulted; iv) the competent authority decides, taken into consideration the results of consultations. The public is then informed of the decision taken and can challenge it before the courts.

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R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) : Realpolitik and the Revocation of an Article 50 TEU Notification to Withdraw

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by John Cotter, Senior Lecturer at University of Wolverhampton Law School
▪

The opening lines of a judgment – in common law jurisdictions, at least – can very often be revealing of a court’s concerns. The first five paragraphs of the collegiate High Court judgment (Lord Thomas CJ, Sir Terence Etherton MR and Sales LJ) in Miller indicate very clearly the judges’ worry that their judgment would be misunderstood by sections of the media and the wider public. This judgment did not have “any bearing on the question of the merits or demerits of a withdrawal of the [UK] from the [EU]”, the Court stated. Rather, the question before the Court was a narrow constitutional issue, and a purely legal matter: whether the government could use Royal prerogative powers to give notification of withdrawal from the EU pursuant to Article 50 TEU or whether this was a matter for the Houses of Parliament. On this question, the High Court ruled that the notification under Article 50 TEU may not be given by means of Royal prerogative; rather, such notification is a matter for Parliament exclusively. While the conducting of international relations and the signing of and withdrawal from international treaties were powers generally to be exercised by the executive on behalf of the Crown, the High Court reasoned that where withdrawal from a treaty would result in changes to domestic law (as withdrawal from the EU would), such withdrawal could not be effected without Parliament.

The Court’s attempt to avoid misinterpretation of its role appears, however, to have fallen on deaf or wilfully closed ears, with the judges being subjected to attacks in sections of the media that were astonishing even by the standards of Britain’s rather histrionic tabloid press (one publication’s front page contained the headline “Enemies of the People” along with photographs of the three judges). To many of those advocating Brexit, the judgment was an unelected court playing politics and frustrating the will of the people (even though the European Union Referendum Act 2015 had not provided that the referendum result be binding). To the Court’s defenders, the judgment was the latest in a line of rulings in which the courts upheld the supremacy of Parliament over Royal prerogative powers. It is certainly the case that the High Court judgment, if upheld by the Supreme Court (which is due to hear an appeal in early December), has the potential to make the giving of the Article 50 notification a more lengthy and complex process. It is conceivable that both Houses of Parliament could use their leverage to require the government to reveal more detail on their post-notification negotiating aims. However, as a matter of realpolitik, the judgment is unlikely prevent Article 50 being triggered: Labour, the largest opposition party in the Commons has indicated that it will not vote against a Bill to give notification under Article 50, and it is unlikely that the Lords would provoke further questions about their relevance in modern Britain by blocking Brexit.

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The need of tax harmonization within the wealth taxation in the European Union

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by Hugo Flores da Silva, Assistant Professor at Law School of UMinho
▪


1. Introduction and wealth taxation characterization

Though widely used in the European Union, the wealth taxes account for a relatively small part of the EU Member States’ tax revenue, when compared with the main sources of revenue[i]. At the same time, the political debate and the scientific research developed in the field of wealth taxation is very incipient, when compared to another taxation bases[ii]. Not even the fact that this kind of taxation constitutes one of the oldest ways employed by the states to obtain revenue was able to counter the identified trend[iii].

However, in the current time of fiscal consolidation and macroeconomic adjustment, taxation of wealth is gaining momentum. The lack of alternatives capable of generating an increase in tax revenue within the income and consumption taxation[iv], the growing interest in the fairness and redistributions aspects of the tax system[v] and the need to adjust the tax system to make it more growth friendly[vi], can be pointed out as the main reasons for the recent academic and political debate on wealth taxation.

When we talk about wealth taxation we’re referring to a very complex reality, capable of reunite a very large group of different taxes[vii]. Although there are many types of wealth taxes, and with very different characterization between them, we consider that they can be grouped into two major categories[viii]: taxes on wealth transfers; and taxes on wealth itself. Inside these two main categories it is possible to identify a wide variety of distinct taxes.

The taxes on wealth transfers usually assume the following characterization[ix]: (i) taxes on onerous transfers – as the onerous movable transfers are subject to VAT, in this subcategory we include the taxes levied on onerous immovable transfers[x]; (ii) and taxes on gratuitous transfers – in this subcategory we include the inheritance and gift taxation[xi]. The taxes on wealth itself can be classified as follows[xii]: (i) taxes levied on the holding or ownership of specific assets – usually immovable property[xiii]; and (ii) taxes levied on the taxpayer’s aggregate net-wealth[xiv].
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EU Citizenship and Protection of Social Rights in the Court of Justice case-law

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by Cinzia Peraro, PhD student in European Union Law at the University of Verona
▪

1. Introduction

This post aims at analysing the fundamental freedom of movement of workers and the protection of social rights in light of the recent EU Court of Justice case-law. The arising question is whether fundamental social rights may assume the same hierarchical level as general principles when a balancing test is exercised within the assessment of compatibility of national measures with EU law.

The definition of EU citizenship and the codification of rights granted to EU citizens are covered by the Treaties, namely by Article 9 TEU, Article 18 ff. TFEU and Chapter V of the EU Charter of Fundamental Rights. EU citizens can freely move across the Union in order to work or look for a job or establish their place of work in one Member State different from the one of origin, where they can enjoy the rights granted by the EU. Indeed, EU citizenship creates rights upon EU citizens and therefore could be defined as a “comunidade de direitos”[i].

Nowadays, the free movement of citizens became a core issue within the debates on present threats and challenges that the EU is facing, amongst which the EU immigration policy that is not only linked to the free movement of persons, but also to the underlying process of integration. In general, a more positive approach should be welcomed when addressing current issues.

2. Free movement of workers

Originally, the four fundamental freedoms were established with the aim of increasing and developing the European internal market and workers were granted rights abroad. The Union offered workers the possibility to move across Member States in order to provide their services or capabilities or establish their place of work. Then, the personal dimension was considered and individual rights were recognised, such as the right to family reunification. Thus, the free movement of workers should not be seen in macroeconomic terms, that is to say linked to the development of the internal market, but rather as a personal freedom to choose the country in which citizens want to work.[ii]

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On the CJEU’s case-law concerning the “social tourism” that preceded the Brexit referendum – between forces of cohesion and fragmentation

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by Professor Alessandra Silveira, Editor
▪

One week prior to the scheduled date of the referendum about the UK leaving the EU a ruling of the Court of Justice of the European Union was published. The decision was to dismiss an action for failure to fulfil an obligation (article 258, TFEU) which had been filed by the European Commission against the UK seeking the conviction of such Member State for violating the prohibition of non-discrimination on ground of nationality[i]. Throughout the year of 2008, the European Commission received several complaints by citizens from other Member States living in the UK with objections about the refusal of British authorities to provide them social benefits due to the absence of proof of the right to reside. Following that, the EC accused the UK of not fulfilling the Regulation 883/2004 (on the coordination of social security systems) because it subjected the applicants of certain social benefits – namely the dependent child allowance or the child tax credit – to the so-called test of right to reside. The Commission considered that requirement incompatible with the meaning of the mentioned Regulation – once it makes reference to a habitual residence and not a legal residence – and, simultaneously, discriminatory towards the nationals from other Member States as such requirement is automatically fulfilled by the British nationals living in the UK.

The core of the case was to evaluate if a Member State’s permission to attribute certain social benefits only to the people who legally reside in its territory is in itself discriminatory under the terms of article 4 of the Regulation 883/2004. Under the title “equality of treatment”, the article states that, unless otherwise provided for by the own Regulation, persons to whom it applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof. All in all, in every situation comprised by the ratione materiae domain of application of the EU Law, any European citizen may invoke the prohibition of discrimination on ground of nationality which shows in article 18, TFEU and it is materialised in article 4 of the Regulation 883/2004. Those situations include the ones deriving from the exercise of the freedom to move and to reside in the territory of the Member States, which are laid in articles 20 (2), 1º§, a) and 21, TFEU.

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A Perspective on Brexit

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by Elaine Dewhurst, Senior Lecturer in Law, University of Manchester

and Dimitrios Doukas, Reader in Law, University of Manchester

If there are two words that characterise the sentiments of many British-based academics anticipating Brexit, they would be ‘uncertainty’ and ‘sadness’. In the widest sense, there is uncertainty about the future of the EU as a project, and the place of non-British EU citizens living in the United Kingdom. Since the referendum result, the careers and livelihoods of those who benefit from EU research funding and collaboration and/or whose expertise lies predominantly or exclusively in areas of EU law have been marred by fear and doubt. Within the legal profession, for example, UK lawyers face an uphill challenge of seeking admission to a second Bar or Law Society, such as in Ireland, to enable them to continue enjoying the freedom to provide their services within the EU. Within legal academia, there is much speculation surrounding the furtherance of existing research projects, and recent studies suggest that collaborations and funding are at risk of termination as a result of the referendum. In addition, there is uncertainty over whether a post-Brexit Britain will retain a migration stream for academics which would match the free movement principles in terms of its encouragement of cross-border movement. For many, it is not just the professional difficulties that may deter academics from working in Britain. Some also have considered leaving Britain as they fear (or have already experienced) a rise in racism and xenophobia, a problem which may also discourage others from seeking work in Britain. More widely than this, there is fear of increasing and unchecked populist politics and anti-immigrant sentiment in the United Kingdom, an apprehension heightened because of Britain’s unadulterated majoritarian democracy in which EU law with its extensive judicial controls has heretofore performed an enforceable moderating influence. Uncertainty also mars the student experience. British universities have, and continue to, benefit financially and culturally from the many EU students who come to Britain every year to study. Reports suggest that the numbers of EU students applying to British universities has dropped since the referendum, and existing students have had to receive assurances as regards their position. Equally affected by this uncertainty are those British students wishing to participate in Erasmus programmes (a programme which has already benefitted over 200,000 British students).

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Sanctions to the anti-trust behaviour: the rethinking

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by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho
▪

It´s not enough for the conducts to be forbidden. The European legislator’s task is much more compelling and challenging because to the European legislator it’s not enough to say “what can’t be done”, he has to be the creator of a coordinated and coherent system of norms in the Member States. The specificity of the regime created will dictate from where these norms start and where they end up. The anti-trust practices, in a internal market logic, are established in the articles 101, 102 and 106, TFEU as prohibited conducts, prejudicial conducts of a European economic project, which shall be conducive to a strong and developed market. However, the European lawmaker could not apply the same logic of cause, effect and consequence that applies to the traditional national systems once these strike back with the set of rules of the market practice – heir to an era when it was every man for himself.

In fact, the European Union has responded with new mechanisms but they are not consistent with integral efficiency of the competition law, in one hand, because in many cases the heavy fines paid by companies outweigh the profit earned by the anti-trust practice or, in the other hand, in case of abuse of dominant position, after the sanction, it converts itself in a long-lasting dominant position. A calculated risk.

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Fundamental freedom and names in the EU

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by George Rosa-Acosta, student of the Master's degree in EU Law of UMinho
▪

Case law from the European Court of Justice demonstrates that in the domain of establishing identity and citizenship, the names of natural persons are paramount. Naming practices straddle public and private law: they are the means by which a state identifies its citizens and by which those citizens embark upon most joint activities with others. In order to rationalise these practices, European Union harmonisation through its long historical arc — helped along copiously and often quietly by the ECJ — involves an evolving system of principles for answering the politically charged imbroglios provoked by disputes over naming rights and formulae. Three cases are of singular importance in defining this emerging EU naming regime: Konstantinidis v Stadt Altensteig, Garcia Avello v Belgian State and Sayn-Wittgenstein v Landeshauptmann von Wien. These cases demonstrate that the ECJ is willing to oblige Member-State liberalisation in conformity with the emerging EU personal nomenclature regime, but not at the point of surrendering bedrock cultural-juridical values that are consistent with the progressive ideology of EU human rights principles.

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Directive (EU) 2016/343 of the European Parliament and of the Council of the European Union, from March 9th 2016, on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings

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by Joana Whyte, Junior Editor
▪

On March 9th 2016, the European Parliament and the Council of the European Union adopted the Directive (EU) 2016/343 of the European Parliament and of the Council of the European Union on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.

This Directive establishes rules on the presumption of innocence, burden of proof, the right to remain silent and the right not to incriminate oneself, the right to be present at trial and the right to a new trial.

Such a Directive is another step towards the establishment of an Area of Freedom, Security and Justice as delimited in the Treaty of the Functioning on the European Union. This Directive was adopted after three other Directives on procedural rights in criminal matters have been adopted. The said three Directives – regarding the right to interpretation and translation in criminal proceedings; the right to information in criminal proceedings; and the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty – are a concretization of the Resolution of the Council on a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings[i].

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An overview of the treatment contract in the DCFR

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by Helga Fonseca, Collaborating Member of CEDU
▪
  1. INTRODUCTION

The Treatment contract is one of the legal instruments provided in the Draft Common Frame of Reference (DCFR)[i] which allows the parts into a medical services contract under the Art. I.V.C.-8:101 to 8:111.

This particular instrument developed in the 1980s in the legislation of the European Community – now the European Union – has the purpose to protect the parts, inter alia, the consumers in private contractual situations, above all, when one party is in a weaker position (the patient) in comparison to the medical provider (the Services Directive does not applies to the medical services)[ii].

As it says in the DCFR, the “DCFR is developed on the basis of comparative studies of community law and the laws of the Member States, it has to reflect the underlying values to be found in the existing laws, that are not the same in each system”. As far as there are differences between the underlying values in individual jurisdictions, or between the laws of the Member States and EC law, the DCFR mediates between them and takes a balanced position. Any attempt to work in principles of private law, will at least have to deal with the following core aims and the values expressed in them: Justice; Freedom; Protection of Human Rights; Economic welfare; Solidarity and Social Responsibility; Promotion of the Internal Market; Preservations of Cultural and Linguistic Plurality and so on[iii].

The DCFR is to be interpreted and applied in consistent with the aims and principles of which not only the laws of the Member States, but also the principles to which the European Union is based on. Such as the Internal Market with free and fair competitions and free movements of goods, people, services and capital, and the protection of consumers and others in need of protection.

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