Category: Essays

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

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Diego Agulló Agulló – Assistant Professor of Private International Law – Universidad Pontificia Comillas (Madrid, Spain)
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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.

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

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Marina Barata (Master's in Law)
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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.

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On the reform of sexual offences in Spain

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Julia Ropero Carrasco and Sandra López de Zubiría Díaz (Universidad Rey Juan Carlos, Madrid)
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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).

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

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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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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”.

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Defining disinformation in the EU: a matter beyond linguistics

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Miguel Pereira (Master’s student in European Union Law at the School of Law of the University of Minho)
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The EU has been a trailblazer in what regards combating disinformation. Through initiatives involving online platforms and drafting of long-term strategies tackling multiple fronts, it has recognized the issue and attempted to address it through non-regulatory policy making. The instruments that have been put forth to combat the phenomenon are often controversial (as is to be expected in all discussions impacting freedom of expression and information) and their effectiveness hard to assess. The debate surrounding these instruments tends to absorb most of the attention, leaving less room to discuss the actual definition of disinformation. This concept is, nonetheless, vital to the successful implementation of policies in this area and to an adequate protection of fundamental rights in the EU, meriting a closer look.

Disinformation is often wrongly equated to, and used interchangeably with, “fake news”. This approach muddles the debate with imprecision and can be particularly pernicious for two reasons. On one side, it does not adequately capture the full scope of the problem which goes well beyond fake news reporting and includes a wide array of:

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The architecture of direct effect: an introduction

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Miguel Pereira (Master’s student in European Union Law at the School of Law of the University of Minho)
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1. Direct effect: paving the road for the European integration

On 5 February 1963, the Court of Justice of the European Union (“CJEU”)[1] issued a judgment that would become a cornerstone of the European Union (“EU”), notwithstanding the fact that the substance of the matter under judgement was quite mundane: was the import duty applied to the import of a chemical component, used mostly to produce adhesive materials, contrary to Article 12 of the European Economic Community Treaty (“EEC Treaty”)[2]?

In all likelihood, most of us would have gone by without ever reading the word “ureaformaldehyde” but fate, and mostly the Court, would have it another way. As it stands, the judgment of the Court in Case 26/62, commonly known as Van Gend & Loos (owing its designation to the plaintiff in the main action in the national court), introduced a new fundamental principle of EU Law, the principle of direct effect, which may be broadly defined as “the capacity of a provision of EU law to be invoked before a national court”[3]. To this broad definition we might add that those provisions must confer rights or impose obligations on those that seek the recognition of direct effect of a given provision[4]. The conditions under which direct effect might be conferred to a provision of EU law are specific and relate to the content and wording of the provision itself, the source of said provision and the nature of the parties in the dispute.

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The rule of law and the defense of citizens against any power: on the case C-650/18 Hungary v European Parliament

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by Alessandra Silveira (Editor) and Maria Inês Costa (Master´s student in Human Rights at the University of Minho)
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The expression rule of law means that the exercise of public power is subject to legal norms and procedures – legislative, executive, judicial procedures –, which allow citizens to monitor and eventually challenge the legitimacy of decisions taken by the public power. The basic idea of the value of the rule of law is to submit power to law, restraining the natural tendency of power to expand and operate in an arbitrary manner – be it the traditional power of the State, or the power of novel political structures such as the European Union, be it the power of private organizational complexes – such as market forces, internet forces, sports forces, etc.

The procedure provided by Article 7 TEU is the most emblematic political instrument to defend the rule of law in the European Union. Article 7(1) TEU constitutes the initial phase in the procedure in the event of a clear risk of a serious breach by a Member State of the common values enshrined in Article 2 TEU. Article 7(2) TEU governs the next stage in which a serious and persistent breach by a Member State of the values laid down in Article 2 TEU can be established. Article 7(3) TEU ultimately provides for the issuing of sanctions against the Member State concerned.

Article 7(1) TEU provides that on a reasoned proposal by the European Parliament, the Council acting by a majority of 4/5 of its members may determine that there is a clear risk of a serious breach by a Member State of the common values of the Union referred to in Article 2 TEU. Moreover, Article 7(5) TUE provides that the voting arrangements applicable to the European Parliament are laid down in Article 354 TFEU – which provides that the European Parliament shall act by a 2/3 majority of the votes cast, representing the majority of its component Members.

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Much ado about the Social Summit?

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by Graça Enes (Faculty of Law of the University of Porto and CIJE)
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The Porto Social Summit was the high point of the Portuguese Presidency, a two-day event (May 7-8th) intended to achieve a strong commitment from Member States, European institutions, social partners, and civil society towards the implementation of the Action Plan for the European Pillar of Social Rights[1]. Several side events occurred along the weeks before the Summit, in Portugal and elsewhere[2], anticipating the debate.

In the days before, important members of the Portuguese Government made public statements stressing the ambition of the event. Ana Paula Zacarias, the Secretary of State for European Affairs, stated that the Porto Social Summit could “move principles to action”.

On May 7th, the Summit webpage announced: “Porto Social Summit starts today, defining EU policies for the next decade”. The stakes were high.

During the afternoon of the first day, a High-Level Conference was held for an extended debate, involving members of the Commission, the President of the European Parliament, the President of the European Council, Heads of Government, and social partners. In addition to the implementation of the European Pillar of Social Rights, issue that was addressed by the Commissioner for Jobs and Social Rights, Nicolas Schmitt, the discussion focused around three major subjects: work and employment; skills and innovation; welfare state and social protection. The participation in the debate went beyond the European Union, with the presence of the Director-General of the International Labour Organization and the Secretary-General of the Organization for Economic Cooperation and Development. The works of the conference were live streamed, and everyone could follow the debates taking place at the Alfândega building. At the opening session, António Costa declared: “We are here today to renew the European social contract, making a commitment, each one at their own level, to develop innovative and inclusive responses”. At the end of the day, Ursula von der Leyen stated: “The Porto Social Summit is our joint commitment to build a social Europe that is fit for our day and age and that works for everyone”. The tangible outcome of this debate was the “Porto Social Commitment”[3], an encompassing compromise of the EU institutions, Member States and European social partners that was being prepared for weeks and was solemnly presented by the three Presidents on the evening of May 7th.

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The importance of the European Banking Authority in harmonising the credit moratorium regime

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by Marina Barata (Master's in Law)
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The pandemic outbreak caused by COVID-19 and the government measures taken by several European Union countries to address or mitigate the spread of the disease had, and continue to have, dramatic consequences for the economy.

Individuals and companies were affected by the economic crisis arising from the successive states of confinement, which created situations of default, even if in some cases temporary, of their financial obligations.

This possible and imminent lack of liquidity on the part of debtors would have a devastating impact on credit institutions, since loans defaults would lead to an increase in the number of defaulters and greater and heavier capital requirements for institutions.

For this reason, credit moratoria were implemented broadly by most of the European Union’s Member States.

Traditionally, a moratorium is the granting of an extension of a line of credit’s payment period, whereby the payment of the instalments is suspended for the period during which the moratorium lasts and the deadline for their full payment is extended for the same period. In the expression of the law, the moratorium is the deferment of the fulfilment of the beneficiaries’ obligation towards the banking system.

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Options for keeping the Common Agricultural Policy within the Green Deal

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by Rafael Leite Pinto (Master in EU Law – University of Minho)
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1. Common Agricultural Policy (CAP) goals within the Green Deal

Presented in 2019, the Green Deal intends to pave the road for a sustainable European Union, cutting emissions by 40% until 2030 and achieving carbon-neutrality by 2050. At her first State of the Union speech, commissioner Ursula Von der Leyen updated the 2030 goal to 55%, following the Parliament’s goal of cutting emissions by 60%.  Within the Green Deal, the Commission revealed several strategic plans including the “Farm2Fork Strategy” and “Biodiversity Strategy”. These plans unveiled the most ambitious goals ever when it comes to reducing the environmental impacts of food production, such as a 50% reduction in pesticide use until 2030; 50% reduction in soil nutrient loss; 50% reduction of antibiotic use in animal farms; increase of the total share of organic farming land to 25%; establish 30% of land and sea as protected areas; plant 3 billion trees; halt and reverse the decline of pollinators; and invest 20 billion euros per year on biodiversity.

Despite the bold target setting, several issues related to the implementation of the necessary measures have been raised. Mainly the compatibility of the proposed Common Agricultural Policy post-2020 and the established goals. The first proposal by the Commission, published in 2018 showed some improvement in agri-environmental measures but was largely classified as insufficient[i],[ii] even for the less demanding goals at the time. In its “How the future CAP will contribute to the EU Green Deal” document, the Commission refrained from further developing the proposal, repeating the previously announced measures. That said, a later published Staff Working Document[iii] concluded that the proposed CAP could have a potential contributory effect to the Green Deal goals, as long as it was approved by the Parliament and the Council in the exact terms proposed, or more demanding ones. Problem is, historically, CAP proposals are diluted in the trilogue and this time was no different. At the end of 2020, a final agreement was reached, and the new CAP was voted in what has been classified by NGO’s as “a kiss of death” for nature in Europe[iv]. Both, the Parliament and the Council voted to soften the proposed agri-environmental measures leading to public outrage and campaigns such as “#votethisCAPdown” and “scrapthisCAP”. The World Wildlife Fund (WWF) accused the European Union’s institutions of ignoring the Green Deal and the evidence when it comes to agriculture’s environmental impacts[v]. For Greenpeace, the new CAP represents the death of small farmer’s and possibly the Green Deal[vi].

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