Category: Essays

A trial run for the EU’s co-regulatory approach: the Strengthened Code of Practice on Disinformation

On By officialblogunioIn Essays1 Comment 
By Miguel Pereira (Master in European Union Law from the School of Law of the University of Minho)
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On the 16 June 2022 the Strengthened Code of Practice on Disinformation was signed and presented to the European Commission, marking the end of a year long process that revamped the original 2018 Code of Practice on Disinformation.

The Strengthened Code, following the lines of the 2018 Code, is a self-regulatory and voluntary mechanism by which participants of the digital economy assume commitments to combat disinformation online. It forms part of a wider strategy that has been developed by the EU institutions since 2018 but has assumed a central role in the EU’s response to phenomenon. The 2018 Code was particularly important to highlight the mechanisms that online platforms had developed (and could develop) to address the issues this threat posed to their services and allowed for closer cooperation between its signatories and the Commission, with special focus around two events: the 2019 European Parliament election and the Covid-19 crisis.

Notwithstanding the successes we have highlighted and the groundbreaking nature of the initiative, a 2020 assessment of the implementation of the code levied criticism at the lack of oversight, erratic reporting practices, vagueness of the commitments, relatively disappointing adherence by industry players and difficulty in evaluating its effectiveness and enforcing the commitments vis-á-vis its signatories. Based on this assessment, the Commission issued a guidance calling for a strengthening of the Code’s structure and commitments and laying out specific areas which merited improvement. The signatories heeded the call and led the review process, with the resulting Strengthened Code closely following the recommendations laid out in the Commission’s Guidance.

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REPOWER EU – A challenge and an opportunity

On By revistaunioIn Essays1 Comment 
By Maria Barros Silva (Associate Lawyer at SRS Advogados – Energy and Competition Law) and Nuno Calaim Lourenço (Managing Associate at SRS Advogados – Energy and Competition Law)
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1. Context

The energy sector is cyclical by nature. History offers several examples of market expansion followed by very sudden contractions. Unfortunately, the current crisis differs from previous ones. To put things into dire perspective, the European Union (“EU”) heavily relies on fossil fuel (gas, oil and coal) imports for its energy needs, amounting to circa 60% of gross energy consumption in the past 5 years. The EU imports 90% of its gas, with Russia previously accounting for 45% of those imports, as well as for 25% of oil and 45% of coal. Although European domestic production of renewable energy sources has increased significantly in recent years, the intermittent nature of the so-called “green energy”, coupled with limited renewable-energy storage and a drastic and intransigent reduction in the production of EU coal, lignite and gas has meant that the EU remains energy dependent.

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The future of Europe: “citizens with real experience” and the European Political Community

On By officialblogunioIn EssaysLeave a comment 
By Pedro Madeira Froufe (Editor) and Tiago Sérgio Cabral (Managing Editor)
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1. The expression “citizens with real experience”, was used by President Emmanuel Macron in his speech on 9 May 2022 at the European Parliament.[1] 

This speech was delivered at the European Parliament’s traditional Europe Day session. This year, this session also marked the closing of the Conference on the Future of Europe. In fact, President Macron used that expression, addressing all those who were involved in the work of the Conference, highlighting the democratic exercise that meant the active participation of citizens, concretised in several proposals. According to Macron, these proposals are creative, as indeed the times we live in in Europe require.

2. The first striking feature of this speech has to do directly with the temporal contextualisation of President Macron’s programmatic ideas. A time of war. A time of war that effectively demands “creative efforts” in the search for European responses to the crisis that, from the outset, erupted because of the war. “Creative efforts’ which, undoubtedly and according to Macron, are more necessary today than they were in the past.

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Protecting Children’s Rights in the Digital Age: the new European strategy for a better internet for kids (BIK+)

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By Maria Inês Costa (Master in Human Rights from UMinho)
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Given the rapid technological evolution in the so-called Digital Decade, and the need for legal regulation in view of the emerging needs and circumstances that this evolution has brought about, the European Union has been taking a position to strengthen the protection of children’s rights in this context. One of the most recent paradigmatic examples of this approach is the new European strategy for a better internet for kids (BIK+), published in May 2022, about two years after the outbreak of the COVID-19 pandemic which increased the use of digital media.

According to Article 24(2) of the CFREU, “in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”[1], and to that extent, the digital transition should be carried out keeping in mind the advantages that these bring to children, for example, as a source of inexhaustible knowledge, but also the dangers it entails and the exacerbation of inequalities it leads to, when there is no governance of its use and access.

As per item 3 of the UN’s General comment N.º 25 (2021) on children’s rights in relation to the digital environment,[2] the children consulted asked questions regarding the new developments in the digital age that directly affect them – “I would like to obtain clarity about what really happens with my data… Why collect it? How is it being collected?”; “I am… worried about my data being shared” – and in the subsequent paragraph (item 4) one can read: “innovations in digital technologies affect children’s lives and their rights in ways that are wide-ranging and interdependent (…)”.

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Some additional thoughts on metadata retention – points to consider when adopting new legislation [on joined cases C‑793/19 and C‑794/19 (SpaceNet) and the German legislation on this matter]

On By officialblogunioIn Essays1 Comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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As we have highlighted in this blog, in the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.  Law 32/2008 transposed the rules of Directive 2006/24, which were declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. This case-law of the CJEU has recently (again) been confirmed in the G. D. judgment, according to which: Article 15(1) of Directive 2002/58 (Directive on privacy and electronic communications), read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union (“CFREU”), must be interpreted as precluding legislative measures which, as a preventive measure for the purposes of combating serious crime and preventing serious threats to public security, provide for the general and indiscriminate retention of traffic and location data (recital 129).

Fortunately, the idea of amending the Portuguese Constitution to overcome the problem of the generalised and indiscriminate retention of metadata – which is, first and foremost, a matter of EU law – is losing steam. But there have been some voices that, surprisingly, suggest a change of course in the case-law of the CJEU and the Portuguese Constitutional Court. It is worth remembering that, in a State governed by the rule of law and a Union based on the rule of law, judicial decisions against which there is no appeal must be respected – whether one agrees with them or not. This is our most precious constitutional heritage. In fact, one could argue that if we had carefully considered the implications and respected the decision of the CJEU in Digital Rights Ireland when it was originally ruled, we could have avoided this entire issue.

Continue reading “Some additional thoughts on metadata retention – points to consider when adopting new legislation [on joined cases C‑793/19 and C‑794/19 (SpaceNet) and the German legislation on this matter]” →

The material competence of the European Public Prosecutor’s Office and its extension to organized crime as terrorism, human and drug trafficking

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Catarina Vilarinho (Master in EU Law, School of Law, University of Minho)
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1. Initial thoughts

The start of operation of a new European body such as the European Public Prosecutor’s Office, hereinafter EPPO, on 1 June 2021 is a sign that the Member States of the European Union (EU) are increasingly aligning themselves to create a stronger and more resilient Union, perhaps, in this case, due to the need to combat transnational crime, for which we will not find a sufficiently effective solution without strong and structured intervention at European level[1].

In this way, the battlefield is prepared for a battle of equal arms, as cross-border crime can now be tackled by an equally cross-border authority[2].

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Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism

On By officialblogunioIn Essays1 Comment 
Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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Very recently, on March 10, 2022, the Alba Iulia Court of Appeal – Administrative and Fiscal Litigation Section ordered the referral to the Court of Justice of the European Union, based on art. 267 of the Treaty on the Functioning of the European Union, with a new preliminary ruling in close connection with the Rule of law (Case C-205/22, C.D.A.).

In fact, the Romanian court’s request tends to ascertain mainly whether, in the interpretation of the CJEU, the principle of judicial independence enshrined in the second subparagraph of Article 19(1) TEU with reference to Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation, laid down in Article 4 TEU, preclude a national provision, such as that of Article 148(2) of the Romanian Constitution, as interpreted by the Romanian Constitutional Court, by Decision No 390/2021, according to which national courts cannot take account of the provisions of European Commission Decision 2006/928 and the recommendations made in the CVM Reports for the implementation of the benchmarks, on the ground that “national courts are not empowered to cooperate with a political institution of the European Union.”

Continue reading “Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism” →

Did the court of last resort apply the CJEU preliminary ruling correctly? In case of EU law breach, what to do in the absence of domestic remedy? – A first appraisal of the pending case F. Hoffmann-La Roche and Others

On By officialblogunioIn EssaysLeave a comment 
Cinzia Peraro  (Senior Researcher of European Union Law, University of Bergamo - Italy)
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I. Background

The Italian administrative judge of last resort (Consiglio di Stato) submitted on 21 April 2021[1] a request for a preliminary ruling in the case F. Hoffmann-La Roche Ltd and Others v Autorità Garante della Concorrenza e del Mercato (C-261/21).

This case falls within the long-running Avastin-Lucentis affair that concerns an agreement restricting competition concluded in breach of Article 101 TFEU between certain companies operating in the pharmaceutical sector. The Italian Antitrust Authority prohibited the continuation of the contested conduct and imposed administrative fines. The companies appealed against this measure before the administrative judge, who rejected them. Within the proceedings at second instance, the Council of State referred a number of preliminary questions of interpretation to the Court of Justice. After the preliminary ruling delivered on 23 January 2018 (C-179/16), the Italian administrative judge dismissed the appeals, thus upholding the decision at first instance and, accordingly, the contested measure. However, the parties asked the Council of State to revoke its appeal judgment, alleging, inter alia, a manifest breach of the principles of law affirmed by the Court of Justice in the previous preliminary ruling and asking to make a new referral to Luxembourg. The administrative judge thus suspended the proceedings and, for a second time, referred to the Court of Justice other three questions.

Continue reading “Did the court of last resort apply the CJEU preliminary ruling correctly? In case of EU law breach, what to do in the absence of domestic remedy? – A first appraisal of the pending case F. Hoffmann-La Roche and Others” →

The other side of War: disinformation

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Ricardo de Macedo Menna Barreto (Guest Professor at the University of Minho Law School)
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Last Tuesday, March 8, 2022, during a debate at the European Parliament in Strasbourg, France, Josep Borrell, EU diplomacy chief, warned that the Russian government will systematically lie about Ukraine’s military situation. At his intervention, Borrell defended that: “(…)accompany Russia’s military campaign in Ukraine, spreading false information among their own population about why this invasion has taken place and what is the situation in Ukraine(…) it not just bombing houses, infrastructure, the bodies of the people; they are bombing their minds, they are bombing their spirits”.[1] The EU diplomacy chief underlines a problem that, in his opinion, is getting worse as our lifetime goes by: the daily battle in the informational field. A battle whose main characteristic is the manipulation of information, a particular form of abuse of power, that is, of social domain. According to Teun van Dijk, manipulation is a form of illegitimate influence, achieved through discourse, in which manipulators make the manipulated believe in (or even do) things that are of special interest to the manipulator (and usually against the interests of the manipulated). In this sense, we can consider discursive manipulation as a complex social phenomenon, involving interaction and abuse of power (domination) between certain groups and social actors. It is also a complex phenomenon, taking into account that it presents itself in two ways: a) as a cognitive phenomenon, since it implies manipulation of the participants’ minds; b) as a discursive-semiotic phenomenon, since it can be expressed in the form of text, conversation or visual messages.[2]   

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Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

On By officialblogunioIn Essays2 Comments 
Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

Continue reading “Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”” →