Category: Essays

The implementation of the Directive 2014/41/EU of 3rd April 2014 regarding the European Investigation Order (EIO) in criminal matters: the way forward

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by Gemma Pérez Souto, Collaborating Member of CEDU
▪

The Directive 2014/41/EU regarding the European Investigation Order (EIO) in criminal matters was approved on 3rd April 2014[i] to avoid the current fragmented framework and set up a comprehensive system for the gathering of evidence[ii] with a cross-border dimension in the area of freedom, security and justice, based on the principle of mutual recognition but also taking into account the flexibility of the existing system of mutual legal assistance.[iii]

The European Investigation Order will replace, as from 22nd May 2017, the corresponding provisions of International Conventions, Framework Decisions or Directives applicable between the Member States bound by this Directive referred to in Article 34 EIO. One of the key aspects of the new Directive relies on this question, as this instrument will replace in the future the traditional system of mutual legal assistance[iv] concerning obtaining evidence.[v]

In accordance with Article 1 EIO, a European Investigation Order is a judicial decision which has been issued or validated by a judicial authority of a Member State[vi] to have one or several specific measure (s) carried out in another Member State to obtain evidence[vii] in accordance with this Directive.[viii] With the adoption of the EIO Directive, the European Union shows that is determined to achieve a sort of ‘European Evidence Law’[ix] flexible and effective at the same time, in order to not only obtain evidence previously in possession of the authorities of another Member State (s), but also to carry out investigative measure (s) with a view to gathering evidence.

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The value of tolerance in a Union based on the rule of law

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by Professor Alessandra Silveira, Editor
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For several weeks following the terrorist attacks in Paris, especially against Charlie Hebdo but somewhat also after Friday, November 13th, the “Treatise on Tolerance” (Voltaire, 1763) was the top best-selling book in France. The correlation between the terrorist attacks and the free exercise of religion is a fallacy to be tackled. Yet, the success of Voltaire´s book is explained by the currentness that the subject of tolerance has achieved. Due to the same reason, a new Portuguese edition of the book was published (Relógio d’Água publishers). Well, assuming the premise that the tolerance, as Voltaire contextually described, stands for a pre-juridical status of acceptance and recognition of the other, then we wonder. What would the present significance of the value of tolerance (article 2, Treaty on the European Union) be, given that alongside pluralism and non-discrimination (among others), it establishes the common axiological grounds upon which the European integration is founded?

In his “Treatise on Tolerance”, Voltaire calls out for the mutual leniency amongst Christians of that time. More precisely, he urges the Catholic France of middle 18th century to bear or to consent the right to profess the Protestant faith. It would be an absolute absurd to intend to lead every man into thinking under a uniform manner about metaphysical issues, he argues. Inspired by the barbarism, the eight judges of Toulouse’s Parliament ordered against the protestant Jean Calas (driven by fanaticism they ruled his torture), Voltaire questions the catholic majority if it would not be possible to tolerate and assimilate Calvinists, rather in the same conditions Catholics are tolerated in London, once the more factions there is, the smaller risk there will be because multiplicity weakens them. Voltaire claims that it becomes permitted to each citizen to practice their faith solely based on their own reason. Moreover, he writes, may each one think whatever this enlightened or misguided mind dictates, as long as public order is not disturbed. It is not a crime not to believe in the mainstream religion, he says, even though the Catholic Church is the “only religion made by God”, all others being “man-made”. Hence, Voltaire´s speech warns to the “terrible consequences of a right of intolerance”. It matters, however, that “men in order to deserve tolerance must begin by not being fanatics”. Fanaticism would be a case in which “intolerance seems acceptable”.

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The principle of recognition as the cornerstone of European neighbourhood policies: waiting for Godot? Who is you, human being?

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by Daniela Cardoso, Collaborating Member of CEDU
 ▪

Due to the widely-acknowledged vulnerabilities that characterise the current European neighbourhood policies and external relations, the European Union has sought to encourage a renewed political dialogue. To a large extent, these new efforts are grounded on the need to face the current humanitarian and social crisis involving migrants and refugees and encountering two leading actors: Germany and Turkey.

The underlying issue is border management in order to polish and consolidate a more realistic answer to different needs. On one hand, attention must be drawn to the internal organisation of countries endowed with the geo-political profile, as the one that can be pointed out to Turkey, and their inabilities to handle the massive incoming of refugees in a solitary confinement. On the other hand, one is confronted with another issue concerning identities in transit. Giving the uncountable number of identities crossing geographical, social and cultural borders, is there any moral obligation on the part of the States to open their borders? At the core of what can be regarded as the management of political borders we encounter two chess pieces. The first thrives on cooperation and stability, sustaining that borders do have a peculiar moral meaning with its own sense of justice at the “local” level, regardless of shared views with political communities on distributive justice. The second one insists on a more plural argument placing the moral significance both in geopolitics and on people, which would be shyly seen in the possible accession of Turkey to the European Union – a topic which was recently re-placed on the table.

In short, there is one map with different languages: the tonic placed on the enlargement of the European Union and the emphasis on shared global governance.

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Passing-on of Overcharges: Will the National Courts Lead the Way Forward?

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by Vírgilo Mouta Pereira, Jurist and Collaborating Member of CEDU
▪

This article starts by presenting a description of the passing-on regime enshrined in the Damages Directive. It argues that national judges need an effective toolkit to successfully deal with issues relevant to passing-on, thereby contributing to the ultimate goal of the Damages Directive: to help citizens and undertakings to be compensated if they are victims of infringements of the EU Antitrust rules. Against this background, in the years to come, the courts of the EU Member States are expected to play a crucial role.

I – Introduction

The Directive 2014/104/EU on antitrust damages[1] (hereinafter referred to as “Damages Directive”) seeks to help citizens and undertakings to claim compensation it they are victims of a breach of the EU Antitrust rules. Infringements cause concrete harm and the Directive sets out rules to ensure that anyone who has suffered harm caused by a breach of Articles 101 or 102 TFUE can effectively exercise the right to claim full compensation for that harm[2].

Antitrust law infringements causing an overcharge, i.e. a price increase, can harm not only the direct purchasers of the affected goods or services, but also those who afterwards purchased those goods or services. Quantifying the extent to which an overcharge has been passed on is part of a broader framework: the quantification of harm in competition law. Continue reading “Passing-on of Overcharges: Will the National Courts Lead the Way Forward?” →