Category: Essays

Analyzing informal care from an EU perspective

On By officialblogunioIn EssaysLeave a comment 
Maria Inês Costa (Master’s student in Human Rights at UMinho).
▪

A 2018 report by the European Commission highlights that the European Pillar of Social Rights “makes explicit the commitment to people providing care, including their rights to flexible working and access to care services“,[1] bearing in mind that data suggests that most long-term care in Europe – around 80% –  is provided by informal carers, this is, people who care for dependent or elderly people, to whom they offer support in basic and/or instrumental activities of daily living. These caregivers are not trained in health care and presumably do not receive compensation for doing this work, neither do they possess a formal work agreement.[2]

In fact, the European Pillar of Social Rights Action Plan, whose goals are to be achieved by 2030, addresses the fact that the resilience of long-term care is being put to the test, not only by the additional strain of the pandemic, but also by demographic trends that suggest an increasingly ageing European society, requiring rapid and effective responses in terms of health care services, their quality and distribution across the territory.[3] Eurocarers, the European network representing informal carers and their organizations, reacted positively to the proposal of the European Pillar of Social Rights, highlighting in a written contribution that support provided to informal carers was key to the sustainability of the health and long-term care systems through participation and integration policies focusing on their well-being, employment and empowerment.[4] In a letter sent to the Portuguese Presidency of the Council of the European Union in April 2021, the European network insisted on the importance of implementing the principles outlined in the European Pillar of Social Rights, and called for the urgent development of a global EU strategy on care, comprehensive enough to address all aspects of formal and informal care, including the current shortages in the informal care sector and the need to ensure support for informal carers to improve their situation, given their crucial role in providing care across the EU.[5]

Continue reading “Analyzing informal care from an EU perspective” →

The EU Circular Economy Strategy: a strong step towards more ecological products design and manufacturing?

On By revistaunioIn EssaysLeave a comment 
Beltrán Puentes Cociña (PhD Candidate at the University of Santiago de Compostela)
▪

Humanity has been engaged in the struggle for sustainability for at least 30 years. Since the Rio de Janeiro Earth Summit in 1992, there have been many political, economic, and social initiatives for a sustainable development that makes human activities compatible with the ecological limits of the planet. One of the latest and most relevant is the circular economy strategy[i]/[ii].

1. The first EU Action Plan for the Circular Economy (2015)[iii]

The current model of production and consumption follows a linear sequence. It is based on the extraction of natural resources, the mass manufacture of products, the over-consumption of short-lived products and the generation of a huge amount of waste that is either incinerated or landfilled. Growth policies encourage the demand for more and more products, so that a country’s economy grows when its consumption and production increase.[iv]

Continue reading “The EU Circular Economy Strategy: a strong step towards more ecological products design and manufacturing?” →

Next Generation EU: the empowerment of the Executive(s) and the weakening of the Legislator(s)? A national perspective

On By revistaunioIn EssaysLeave a comment 
Pedro Petiz Viana (Master in Law and Informatics from UMinho / LL.M student in European Law at the University of Leiden).
▪

Von der Leyen: ‘A lot of work ahead of you…’

António Costa: ‘Now I can go to the bank?’

Von der Leyen: ‘You can go to the bank’

News Conference on the approval by the Commission of Portugal’s Recovery Plan, July 2021.

This dialogue summarizes the increased importance of the Commission stemming from Next Generation EU. In the first line, the Commission takes on its technocratic, ‘administrative-executive’ role, guiding the Member States in their path to economic reforms. In the remaining dialogue, the Commission assumes a more political role, as the guardian of the 750 billion euros vault: Von der Leyen, ‘cheque’ in hand, flying across the Union and holding various press conferences, showing the European public that the Commission is the symbol of European funds to come. Alongside the Commission, national governments have also been empowered by NextGenEU, having been tasked with drafting national recovery plans.

Continue reading “Next Generation EU: the empowerment of the Executive(s) and the weakening of the Legislator(s)? A national perspective” →

Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law

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)].
▪

The saga of requests for preliminary rulings by Romanian courts on the rule of law and the independence of judges continues, although, under pressure from the Romanian Constitutional Court’s decisions, ordinary judges have begun to refuse to apply European Union law. Failure to comply with the decisions of the Constitutional Court constitutes a disciplinary violation, a legislative solution that allows total disregard of the decisions of the Court of Justice of the European Union, for fear of disciplinary action. A climate of fear among judges was created by disciplinary actions initiated without any reservations by the Judicial Inspection against the judge of the Pitești Court of Appeal who dared to apply the CJEU decision of 18 May 2021, but also the judges who proposed and/or referred to the CJEU in this case.

Continue reading “Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law” →

The national judge as judge of the Union (a view of the Judges’ Forum 2021 – CJEU)

On By officialblogunioIn EssaysLeave a comment 

Irene das Neves (Appeal Court Judge of the Northern Administrative Central Court - Tax Litigation Section), Dora Lucas Neto (Appeal Court Judge of the Southern Administrative Central Court - Administrative Litigation Section), and Isabel Silva (Judge of the Administrative and Fiscal Court of Braga - Tax Litigation)
▪

The reference for a preliminary ruling, provided for in Article 19(3)(b) of the Treaty on European Union (TEU) and Article 267 of the Treaty on the Functioning of the European Union (TFEU), is a fundamental mechanism of EU law.[1] It is an “incident” within national proceedings that obliges the national judge to stay the proceedings because it is faced with the need to obtain a “preliminary” ruling from the Court of Justice of the European Union (CJEU) on the interpretation of EU law or the validity of the acts of its bodies, institutions or agencies, with a view to the proper administration of justice within the EU. To that extent, the national courts playing the role of guardians of EU law, ensuring the effective and homogenous application of the law, and seeking to avoid divergent interpretations by the various courts of the Member States.

It was on this theme of the reference, focused on the reference for the interpretation of EU law, that the President of the CJEU, Koen Lenaerts, opened the 2021 Judges’ Forum, which was held at the CJEU from 21 to 23 November and brought together judges from the courts of first instance and the appeal courts of the Member States, recalling that the reference for a preliminary ruling is an instrument of judicial cooperation by means of which the national judge and the EU judge are called upon, within the scope of their respective powers, to contribute to a decision ensuring the uniform application of EU law by the Member States.

Continue reading “The national judge as judge of the Union (a view of the Judges’ Forum 2021 – CJEU)” →

Evaluating the legal admissibility of data transfers from the EU to the USA

On By officialblogunioIn EssaysLeave a comment 
Alessandra Silveira (Editor) and João Marques (Lawyer, former member of Portuguese Data Protection Supervisory Authority)
▪

1. The feud between Maximillian Schrems and the Irish Data Protection Supervisory Authority (Data Protection Commission – DPC), with Facebook always lingering in, has been detrimental to frame the legality of data flows from the European Union (EU) to the United States of America (USA), but also to any third country that replicates the shortcomings relating to the inexistence of a “level of protection essentially equivalent to that guaranteed within the European Union (…), read in the light of the Charter of Fundamental Rights of the European Union” [in the words of the Court of Justice of the European Union (CJEU)].[1]

2. The sole action of one man has brought down two different and sequential “transfer tools”, created in tandem by both the European Commission (EC) and the United States’ Government. In case C-362/14 the CJEU declared the Safe Harbour decision (Commission Decision 2000/520/EC of 26 July 2000) invalid, as the Court found that the USA’s legislation did not offer an essentially equivalent level of protection to that of the EU, also reminding all Data Protection Supervisory Authorities that their work is never done and that it is, in fact, upon their shoulders the task and the responsibility to constantly monitor if any given third country complies and remains compliant with the need to offer such an equivalency.

Continue reading “Evaluating the legal admissibility of data transfers from the EU to the USA” →

Directive 2020/1828: a new era for “European class actions”?

On By officialblogunioIn EssaysLeave a comment 
Diego Agulló Agulló – Assistant Professor of Private International Law – Universidad Pontificia Comillas (Madrid, Spain)
▪

1. Introduction

Consumer protection is a pillar of the regulatory strategy of the European Union legislator. In this context, one of the issues that has been debated for many years is the possibility of introducing representative actions for consumer protection, a European version of American class actions, in the different Member States. The goal of this legal transplant is, on the one hand, to favor access to justice for consumers in scenarios of mass damages and, on the other hand, to deter future wrongdoings harmful to consumers by companies operating in the European Union.

Since the publication in 2008 of the White Paper on damages actions for breach of the EC antitrust rules, many legislative instruments of different types have been published within the European Union in the field of consumer collective protection. Also in 2008, the Green Paper on consumer collective redress and, a year later, Directive 2009/22/EC — the latter marking a turning point in the European regulatory framework for collective redress– stand out. Directive 2009/22/EC urges Member States to ensure the implementation in their respective legal systems of actions for injunctions for acts of non-compliance with EU law that harm consumers. Mention should also be made of the Commission’s important Recommendation on Common Principles applicable to collective injunctions or redress mechanisms in the Member States in the event of infringement of rights recognized by European Union law.

Continue reading “Directive 2020/1828: a new era for “European class actions”?” →

A tax deal for the digital age – are we ready for this?

On By officialblogunioIn EssaysLeave a comment 
Marina Barata (Master's in Law)
▪

1. The deal

On October 8, 2021, the world woke up with the news that the OECD/G20 has agreed a two-pillar solution to address the tax challenges arising from the digitalisation of the economy, marking the first rewriting of international tax rules in a generation.

We might as well talk about a Generational Achievement.

The framework updates key elements of the century-old international tax system, which is no longer fit for purpose in a globalised and digitalised 21st century economy.  The two-pillar package – the outcome of negotiations coordinated by the OECD for much of the last decade – aims to ensure that large Multinational Enterprises[1] (MNEs) pay tax where they operate and earn profits, while adding much-needed certainty and stability to the international tax system. The proposal established a 15% global minimum tax, starting in 2023, and was designed to discourage tax-motivated profit shifting and base erosion by digital corporations that operate worldwide.

Continue reading “A tax deal for the digital age – are we ready for this?” →

On the reform of sexual offences in Spain

On By officialblogunioIn EssaysLeave a comment 
Julia Ropero Carrasco and Sandra López de Zubiría Díaz (Universidad Rey Juan Carlos, Madrid)
▪

The regulation of so-called “sexual crimes” has traditionally been accompanied by significant and heated debates. If we refer to its historical regulation, it is possible to see how “honour” or “morality” have clouded adequate protection of the victim, essentially due to the mistaken identification of the harmfulness of these acts. From 1995 onwards, with the so-called “Penal Code of Democracy”, it seemed that the regulation had been translated into important improvements, especially by consolidating “sexual freedom” as the legal right to be defended, instead of the previous obsolete conceptions. However, despite the commendable effort to abandon the conventional “sexual morality”, the truth is that this reform brought with it a lack of protection for victims, especially in the area of minors and trafficking for the purpose of sexual exploitation, which led to different revisions accompanied in turn by controversy over the timeliness of the reforms.

For this reason, the controversies surrounding the regulation (and its application) of sexual offences have not ceased to be present, although it is in the wake of the well-known case of “La Manada[1]” and the various sentences issued on the matter that Spanish society has been particularly rallied and, with it, the debate on the appropriateness of criminal reform in this area has been reignited.

As a current context, it is necessary to pay attention to the data extracted from the 2019[2] Macro-survey on violence against women, as well as from the Report on Social Perception of Sexual Violence[3], which shows the prominence of sexual violence in women’s lives, the problem of under-reporting of the facts and, more worryingly, the maintenance of stereotypes about sexual violence (especially with regard to the conception of the “rapist” as a sick person and not as one of the perverse derivations of a patriarchal order that maintains a strong discrimination against women in the sexual sphere and a definition of roles that promotes male domination).

Continue reading “On the reform of sexual offences in Spain” →

The priority of the EU law in Romania: between reality and Fata Morgana

On By officialblogunioIn Essays3 Comments 
Dragoș Călin (Judge at the Bucharest Court of Appeal and co-president of the Romanian Judges' Forum Association)
▪

1. Are ordinary judges afraid to apply CJEU judgments?

The judgment of the Grand Chamber of the Court of Justice of the European Union, delivered in the 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 și alții, on 18 May 2021, has caused a real earthquake in Romania.

It was so intense that, in order to maintain the previous state of affairs, the Constitutional Court of Romania immediately intervened, by Decision no. 390/2021, contrary to the CJEU judgment, ordering that national ordinary judges may not analyse the conformity of a national provision, which has already been found to be constitutional by a decision of the Constitutional Court, in relation to the provisions of European Union law.

More specifically, invoking the disregard of the national constitutional identity, “as a guarantee of a fundamental identity nucleus of the Romanian Constitution and which should not be relativised in the process of European integration”, the Constitutional Court of Romania found that “the CJEU, declaring the binding nature of Decision 2006/928/EC [establishing the Cooperation and Verification Mechanism (CVM) for Romania], limited its effects from a double perspective: on the one hand, it established that the obligations resulting from the decision fall within the responsibility of the competent Romanian authorities that have the competence to cooperate institutionally with the European Commission (paragraph 177 of the decision), therefore within the responsibility of the political institutions, the Romanian Parliament and Government, and, on the other hand, that the obligations shall be exercised under the principle of sincere cooperation, provided by Article 4 of TEU. From both perspectives, the obligations cannot be incumbent on the courts, State bodies that are not authorized to cooperate with a political institution of the European Union.” It was therefore established that the “implementation of paragraph 7 of the operative part of the judgment, according to which a court is authorized to set aside ex officio a national provision falling within the scope of Decision 2006/928 and which it considers, in the light of a Court judgment, to be contrary to this decision or to the second subparagraph of Article 19 (1) TEU, has no basis in the Romanian Constitution”.

Continue reading “The priority of the EU law in Romania: between reality and Fata Morgana” →