Category: Essays

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)].
▪

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)
▪

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

On By revistaunioIn EssaysLeave a comment 
Ricardo de Macedo Menna Barreto (Guest Professor at the University of Minho Law School)
▪

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]   

Continue reading “The other side of War: disinformation” →

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)].
▪

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”” →

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” →