Category: Essays

Procedural changes in the European Court of the European Union by entrusting preliminary ruling competences to the General Court: first impressions

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Joana Covelo de Abreu (Editor of this blog and Key-staff member of Jean Monnet Centre of Excellence “Digital Citizenship & Technological Sustainability” - CitDig, Erasmus+).

Protocol No 3 on the Statute of the Court of Justice of the European Union was amended by Regulation (EU, Euratom) 2024/2019 of the European Parliament and of the Council, of April, 11th 2024, which entered into force on September 1st 2024. These changes were mainly focused on relieving the Court of Justice from some of its jurisdictional demands, especially by entrusting the General Court the competence on certain specific areas in which preliminary questions could be raised. Notwithstanding, the opportunity was also embraced to “modernize and simplify procedures before the two courts”, i.e., the Court of Justice and the General Court.

In fact, the Court of Justice of the European Union was already called upon to pronounce itself concerning the possibility to transfer jurisdiction on preliminary references to the General Court, under specific circumstances: under Regulation (EU, Eurotom) 2015/2422, this institution submitted a report to the European Parliament, the Council and the Commission on 14th December 2017, where it “took the view that there was no need, at that time, to propose changes as regards the manner of dealing with requests for a preliminary ruling under Article 267 TFEU.” However, in that same report, the Court also “pointed out that a subsequent transfer of jurisdiction to the General Court to give preliminary rulings in certain specific areas could not be ruled out if the number and complexity of requests for a preliminary ruling submitted to the Court of Justice were to be such that the proper administration of justice required it” (Recital 1 of Regulation 2024/2019).

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Football and the Internal Market: Integration beyond passion? (CJEU “BZ” ruling of October 4, 2024)

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Pedro Madeira Froufe [Editor of this blog and Coordinator of the Group "Studies in European Union Law" (CEDU), of JUSGOV - Research Centre for Justice and Governance, University of Minho).
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1. Football currently calls for multiple angles of analysis. In recent decades, as an economic activity, it has developed universally. It is a very specific economic activity that involves notable movements of capital and human resources, sociological and cultural aspects. It increasingly involves a technological, television and audiovisual aspect. It is common to say about football, that it – as a phenomenon – “moves passions and crowds”. In parallel, there are manifestations of local, regional and national identity associated with football. This has, directly and indirectly, a very significant economic weight.

For example, according to a study/record of international transfers of football players, called “Transfer Matching System (TMS)”, between 2011 and 2020, the positive net balance of player transfers from Portugal to other countries would have been greater than 2.5 billion Euros.[1] Progressively, football developed its professional-economic aspect, inserted in its own relevant market, which was also being built, solidified and growing in recent decades. The so-called “football industry” (a relatively common expression) is overlapping, on a global scale, with the dimension of football as a mere sporting, educational and leisure activity.

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Rethinking Public Acceptance Mechanisms and Ethical Frameworks for emerging technologies in the EU: The example of Virtual Reality

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Manuel Resende Protásio (PhD candidate at the School of Law of University of Minho | FCT research scholarship holder – Bolsa UI/BD/152801/2022)

Introduction

The European Union (EU) faces a profound challenge in the regulation and oversight of rapidly advancing technologies such as Virtual Reality (VR). As technological progress accelerates, the mechanisms that assess, accept, and regulate such innovations are being tested like never before. This article seeks to unravel the complexities of these mechanisms, exploring how the EU addresses ethical, social, and economic challenges arising from VR through public consultations, impact assessments, and legislative initiatives such as the “Better Regulation” agenda.

Drawing attention to key institutions such as the European Commission and advisory bodies like the European Group on Ethics in Science and New Technologies (EGE), we examine their roles in shaping the regulatory landscape. At the heart of this inquiry is the question: how can the EU balance the often competing demands of innovation, public safety, data protection, and ethical standards?

By delving into real-world applications and regulatory obstacles—such as the effects of VR on mental health, consumer protection, and data concerns—this article presents an in-depth analysis of the current regulatory framework. Ultimately, the aim is to advocate for more transparent, inclusive, and adaptive approaches to governance, which are vital for fostering innovation while safeguarding societal interests.

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A wall that fell, a world that collapsed: the transition to the unexpected (on the 35th anniversary of the fall of the Berlin Wall)

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Rubén Díez García (Professor in the Department of Applied Sociology at the Complutense University of Madrid)

The Berlin Wall, built in 1961, was more than just a physical barrier: it was a symbol that separated two worlds and competing political ideologies. This ideological division also fuelled conflict within liberal democracies themselves. On the eastern side, the communist bloc, under the tutelage of the Soviet Union, controlled the political, economic, and social life of its societies. On the western side, liberal democracies defended their ideal of individual freedom and human rights. And I emphasise “ideal,” because it is no secret that democratic liberalism in practice is not exempt from risks, threats, and tensions.

Beyond separating two blocs during the Cold War, the wall also divided two different ways of legitimising power. Without delving into the limitations and the shadows and monsters of reason illuminated by modernity and capitalist development, the Berlin Wall encapsulated an oppressive reality for millions in the communist bloc. Its very existence reflected authoritarian control that restricted access to information, freedom of speech, and even collective expression, a key element in our democracies. The wall symbolised the state’s force to suppress the desire for personal autonomy beyond the collective, as well as the right to free movement. Over time, its meaning expanded: it ceased to be just a tangible border and became a symbol of the authoritarian system governing the Eastern bloc.

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On rebalancing powers in the digital ecosystem in recent CJEU case law (or on the battle between David and Goliath)

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Alessandra Silveira  (Editor of this official blog, Academic Coordinator of Jean Monnet Centre of Excellence “Digital Citizenship & Technological Sustainability” - CitDig, Erasmus+)
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There is no doubt that European Union (EU) law is committed to a certain rebalancing of powers in the digital ecosystem. And why is that? Because today there is a clear imbalance of power in favour of digital service providers, which requires a strengthening of the position of users in their relationship with providers. The Internet has become a space made up of platforms, where unilaterally established and non-transparent business models are developed. This attempt to rebalance power in the digital ecosystem is an exercise in social justice that only the EU can foster. And this trend is particularly noticeable in the field of personal data protection.

The emergence of a business model based on data – and profiling based on inferred data – reveals the imbalance of power between users and platforms. This has led some authors to recognise the quasi-public powers exercised by technology companies on the Internet: they regulate, enforce and resolve conflicts of interest, acting in an uncontrolled way that we would not even allow public authorities to do in the context of the rule of law. But the problem must be contextualised: what is personal data?

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Law and politics: the Puigdemont case and the dialogue between courts

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Teresa Freixes (President of Citizens pro Europe and Jean Monnet Professor ad personam)
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In recent weeks, the Court of Justice of the European Union (CJEU) has handed down judgments that shatter the assertion, so dear to some, that law cannot constrain policy. I am referring, essentially, to those that have considered the EU’s agricultural and fisheries agreement with Morocco to be contrary to EU law because it does not respect the will of the Sahrawi people, guaranteed by international law (Judgment in Joined Cases C-778/21 P and C-798/21 P and in Joined Cases C-779/21 P and C-799/21 P); also, the EU must grant political asylum to Afghan women who request it because they objectively meet all the legally established requirements for it to be granted, given the systematic violation of rights to which they are subjected in their country (Judgment in Joined Cases C‑608/22 and C‑609/22); and, of course, that which rejects the appeal of Mr. Puigdemont and Mr. Comín, confirming that they cannot be considered MEPs because they have not fulfilled the requirements established in national law to do so (Judgment C-600/22 P).

No matter how much political agreement there has been between the political bodies of the EU and Morocco, ignoring the fact that legally speaking Western Sahara is still a territory to be decolonised, regardless of the political decision that has been taken to abandon Afghan women asylum seekers to their fate, or the political will that some have had in pretending that one can be an MEP without complying with the electoral law of the Member State, the CJEU has guaranteed the rule of law and the application of the competent rules in the disputes that are the subject of its rulings. This is an example to be followed by the high courts, both supreme and constitutional, in all EU Member States and, particularly, as far as Spain is concerned.

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Romania: A declaration of war from the High Court of Cassation and Justice against the Court of Justice of the European Union

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Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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The judgments of the Court of Justice of the European Union regarding the rule of law and the serious fraud against the financial interests of the European Union appear to have been optional for the Romanian courts, and a new interpretative decision of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, Decision No 37/2024, binding erga omnes, is the last proof of this fact.

For qualified researchers, the case of the Constitutional Court of Romania is well known. By Decision No 390/2021, the Constitutional Court of Romania created a ‘brick wall’ between the national courts and the CJEU, in order to maintain the applicability of national legislation contrary to the judgment of the CJEU in Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, by requiring national ordinary judges not to analyse the conformity of a national provision, already found to be constitutional by a decision of the Constitutional Court, in the light of provisions of European Union law.

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Democratic Integrity in the Era of Digital Disinformation

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Eduardo Paiva  (Master in Law and Informatics - UMinho)
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The healthy unfolding of democratic electoral processes – and of democratic life in general – has been threatened by the dissemination of disinformation (defined as “false or misleading content that is spread with an intention to deceive or secure economic or political gain, and which may cause public harm”) by agents who do not uphold the same principles.[1] Under these circumstances, a climate of manipulation and deceit is fostered, which is extremely and particularly malign for crucial moments of political decision,[2] as attempts are made to strip them of their inherent relevance and validity, constituting one of the most dangerous forces deteriorating our democratic foundations.[3]

 In this sense, the role of major digital platforms, as holders of vast power to control and influence communication and information channels on a global scale, is chronic and central in this issue. Taking this into account, they should be compelled to engage in self-criticism towards a certain openness in applying changes to the operational models of their businesses.[4] The enormous capacity of these technological platforms in amplifying and micro-targeting content makes them extremely attractive for the precise propagation of information on a large scale, thus making them systematically targeted for hybrid activities in the field of disinformation. Amidst this web of opaque information, it is more important than ever to know which profiles and posts are genuinely concerned with conveying the reality of facts in an impartial and well-founded manner.

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CJEU case law on ‘amnesties’: prospects for the Spanish amnesty on the Catalan independence conflict

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Miryam Rodríguez-Izquierdo Serrano  (Professor of Constitutional Law at the University of Seville)
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On 11 June 2024[1], the Spanish Official State Journal published Organic Law 1/2024, of 10 June, on amnesty for institutional, political and social normalisation in Catalonia (Ley Orgánica 1/2024, de 10 de junio, de amnistía para la normalización institucional, política y social en Cataluña).[2] The law entered into force at the same time of its publication. As of this date, it is mandatory for the judicial, administrative and accounting bodies that may be handling cases linked to the sovereignty process in Catalonia (2014-2017) to apply the law. The law orders these bodies to exempt from criminal, administrative or accounting liability those who have been involved in those events, especially those linked to the preparation or consequences of the consultations on independence that took place in 2014 and 2017.

The approval of this Spanish amnesty law has been preceded by some speculation about the position that the EU will adopt in relation to it, as well as others related to possible preliminary rulings: whether the Spanish courts could ask the CJEU for preliminary rulings before adopting their decision on the application of the amnesty law to each specific case. For this reason, it is relevant to recall what the EU’s position has been, to date, regarding amnesties approved in its Member States. But above all, it is important to find out whether the CJEU has previously ruled on the effectiveness of amnesty laws. This will provide basic guidance on whether the CJEU has jurisdiction over an amnesty law passed in a Member State and on the limits within which a Member State may decide to amnesty criminal, administrative and accounting liabilities.

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A matter of principle: the growth of the far right in the 21st century in the light of the structuring principles of the European Union

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Ricardo Martins de Sousa e Silva (Master in Human Rights by UMinho)
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Once again in contemporary history, the far right occupies the centre of the European and world political scene. We see this in the growing popular support their political movements receive, in their growing ability to determine the themes of national and supranational political debates, as well as to influence the policies and way of doing politics of other political parties, and in their electoral growth, all over the world, but particularly in the Member States of the European Union (EU); either by becoming the main opposition parties, by becoming indispensable for the formation of governments, or by taking power, by forming governments themselves.[1] We also see this in the increase in politically motivated violence, whether it is symbolic violence, with the growth of hate speech[2] and the creation of an environment of insecurity for people on the political left and for ethnic, religious, sexual and gender minorities, or physical violence, with the increase in the number of attacks on members of those minorities. In these matters, Portugal is no exception.[3]

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