Note from MEP José Manuel Fernandes regarding European Parliament resolution of 10 March 2022 on the rule of law and the consequences of the ECJ ruling

José Manuel Fernandes (Member of the European Parliament)

The principle of the rule of law is not just one among other basic principles of our democracy. It is more than that: it is a sine qua non condition for the recognition of all other fundamental rights. There is no effective freedom of speech, of association, of conscience, among others, in a community that is not governed by law. Where there is no “rule of law”, there is arbitrariness and lack of security. In such conditions, there is no freedom.

When the “rule of law” is abandoned, explicitly or implicitly, we embark on a path that leads from civility to barbarism, from equality before the law, to the rule of the strongest; from the liberal democratic system built and perfected over the last decades, to alternative, authoritarian regimes that restrict freedoms. Whoever foregoes the “rule of law” necessarily foregoes the fundamental principles on which the Portuguese constitutional order and the European Union Treaties are founded (see art. 2 TEU). Therefore, respect for the rule of law is not an option but an obligation in order to be eligible to be a member of the European Union.

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European e-Justice in the Digital Decade – building a Digital citizenship (some remarks on the importance of European e-Justice to Digital citizenship effectiveness)

Joana Covelo de Abreu (Editor and Jean Monnet Module eUjust Coordinator), Alessandra Silveira and Pedro Madeira Froufe (Editors and Key Staff Members of the Jean Monnet Module eUjust)

The European Union established that, until 2030, it will pursue a Digital Decade as one of its primal public interests. In fact, COVID-19 fastened digitalization path in the European Union since it made digital environment as imperative in our daily lives as offline engagement. However, if it showcased major digital opportunities, it also exposed vulnerabilities of the digital space and enhanced a new phenomenon: the one relating to digital poverty, focusing on those that, by lacking infrastructural and/or educational background, are left outside the digital world. This is one of the visible faces of a larger problem of this decade: the one related to the digital divide which, besides emerging on infrastructural level – not only between well-connected urban areas and rural and remote territories, but also between those that can fully benefit from an enriched, accessible and secure digital space with a full range of services and those who cannot –, it also appears, nowadays, with i) a commercial repercussion, between those businesses with online expression and those that have not reached that point; and ii) a literacy lack, between those that grasp, at least, basic digital skills from those that do not possess them.

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The relevance of judicial institutions in upholding the Rule of Law

Gonçalo Martins de Matos (Master’s student in Judiciary Law at University of Minho) 

Between the 15th and the 16th of February 2022, two landmark decisions were issued by two distinct courts: one regarding EU law, by the Court of Justice of the European Union (CJEU), and the other regarding Portuguese law, by the Portuguese Constitutional Court. We shall look at both of them and analyse what they introduce (or establish) regarding the defence of the Rule of Law.

We shall start with the CJEU’s decision. On 16 February 2022, the CJEU rendered its judgment in Cases C-156/21 Hungary v. Parliament and Council and C-157/21 Poland v. Parliament and Council. Both Cases emerged from two actions for annulment brought by the Republic of Poland and Hungary concerning Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget[1]. This Regulation adopted several provisions linking access to EU funding and the respect for the Rule of Law, with a view to “protect the EU budget from financial risks linked to generalised deficiencies as regards the rule of law in the Member States[2].

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The Hungary question: how are the rights of LGBTIQ people in the EU?

by Ana Cardoso (Master’s student in European Union Law at the School of Law of the University of Minho)

On 23 June 2021, the Hungarian President Jánus Áder promulgated a law which forbids schools and the media of “promoting or portraying” homosexuality or sex reassignment to minors and limits sexual education in schools. The abovementioned law was approved by the Hungarian Parliament on 15 June 2021 and initially started as a way of introducing heavier sanctions on sexual crimes against minors, boosted by the scandal that happened earlier in the year involving the Hungarian ambassador to Peru, Gábor Kaleta, who was found in possession of nearly 20,000 pornographic pictures of minors. However, on 9 June 2021 MPs from the ruling party, Fidesz, submitted last-minute amendments to the law which target sexual minorities, in practice linking homosexuality to paedophilia.

The law (including the last-minute amendments) forbids that any content featuring portrayals of homosexuality or sex reassignment be made available to minors, states that school sex educators can no longer “promote” homosexuality or sex reassignment and that sexual education classes can only be held by registered organisations, limiting more liberal NGOs, and finally puts restrictions upon ads with LGBTIQ content. President Áder maintains that this new law only aims to protect children and give their parents the rule over sexual education, and that it does not affect the right of adults to choose how they live their own lives, or the right to private life enshrined in the Hungarian Constitution. Furthermore, Prime Minister Viktor Órban has stated that the law passed and that it was final, showing no intention of backing down.

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New Pact on Migration and Asylum – first impressions and old deceptions

Ana Maria Rodrigues, PhD candidate and Lecturer at UMINHO
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Last week, the European Commission has launched its long-awaited proposal for a New Pact on Migration and Asylum. Alongside the new Pact comes a hoard of political and legislative proposals. The said intention is to set a new European framework that can, on the one hand, acknowledge collective responsibilities, on the other hand, address the fundamental concerns with solidarity (or lack of), and finally, tackle the implementation gap.

Proposals comprise a new regulation on asylum and migration management, a new regulation establishing a common procedure for international protection (therefore repealing the corresponding Directive), a new regulation introducing a screening of third-country nationals at the external borders, a new regulation addressing situations of crisis and force majeure in the field of migration and asylum (therefore repealing the temporary protection directive), and a new regulation on Eurodac (aimed at replacing the current one), as well as several other soft law instruments and some of the 2016 reform proposals on which political agreement was reached.

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Financial Supervision Models

Marina Barata, Master's in Law
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The debate on the structure and functioning of the European financial system is necessarily linked to the discussion regarding the financial supervision models.

This is not a recent issue, since it resurfaces with every financial crisis, but it is still relevant, especially if we take into account that the globalization movement brings along a greater propensity for instability in the financial sector given the risk of contagion, systemic risk or the domino effect.

Financial globalisation has gradually, in the name of synergies and competitive advantages, blurred the boundaries between the various sectors of financial activity, allowing the financial conglomerates to emerge.

Today, in addition to the traditional credit function of banking — raising savings or other repayable funds and transferring them on own account to other economic agents through loans or other forms of financing — Banks can provide investment services, operate on the stock exchange, invest in own account in real estate, and mediate insurance.

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Thinking about the post-COVID-19 world is putting the European Green Deal into practice: this is the time for the European Union to respond in line with “green”

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 by Nataly Machado, Master's student in EU Law, UMinho

There are several reports of reductions in pollutant emissions caused by the global shutdown due to the pandemic. Images taken via satellites and drones show us the record of abrupt drops in air and water pollution levels[i].

Unfortunately, there are also news about increased deforestation in areas such as the Amazon and the Pantanal[ii], concomitant with the new coronavirus crisis. In addition to what happens during the pandemic, the concern exists for the forthcoming post-crisis, which may show a sharp increase in the level of pollutant emissions due to the economic recovery, as occurred in other post-crises, such as the Spanish flu in 1918, the Great Depression in 1929 and the financial crisis in 2008[iii].

It is a reality that the new coronavirus has changed and will change, drastically, the people’s and public authorities’ priorities. Life must be protected. Until a vaccine is developed, public health control measures combined with strict social and economic measures will be implemented to handle the consequences that have already affected many countries around the globe.
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Fyodor Dostoyevsky and the primacy of EU law: overcoming the “eternal husband complex”

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by Alessandra Silveira, Editor

The Arts have always helped the human being to organize the knowledge and to provide a way to understand the meaning of things. The recent decision of the German Constitutional Court[i] on the European Central Bank (ECB) and its Public Sector Purchase Programme (PSPP) has served to create distrust in an atmosphere that is already very sensitive – and it has reminded me an academic episode that shows the role of the Arts in the process of learning. A few years ago, I carefully assessed a paper presented by a Master’s student entitled «Constitutionalism and the principle of primacy of EU law: overcoming the ‘eternal husband complex’». The unexpected title touched on “The Eternal Husband”, Fyodor Dostoyevsky’s literary work. Of course, this needs to be contextualized.

It is said that Russians under czarist rule used to refer in this way, “eternal husband”, to those who never dared to separate from their wives, regardless of the misfortune of the conjugality – from the mere lack of interest to adultery. Adapting the characters to the legal script of integration, the Master’s student explained me his objectives. He wanted to show that the constitutional system of checks and balances which guides the functioning of the EU legal order prevents EU Institutions from betraying the principles that establish and sustain the Member States constitutional paradigm. Therefore, the student argued, there are no credible reasons for resentments and misgivings – and it is urgently required to overcome the “eternal husband complex” of the national constitutionalism.

If we test this argument in light of the concept of European Union as a Union of law, we will conclude that the student may well be right. That legal principle affirms the idea that the Union is based on the rule of law, inasmuch as neither its Member States nor its Institutions can avoid a review of the question whether the measures adopted by them are in conformity with the EU basic constitutional charter – the Constitutive Treaties. Therefore, the principle of primacy of EU law does not qualify each and every EU legal act, but only those issued in accordance with the Constitutive Treaties – and the ECJ is solely responsible for assessing this validity. According to Article 19(1) TUE, the ECJ shall ensure that in the interpretation and application of the Treaties the law is observed, i. e., the ECJ is who decides on the scope and the exercise of the EU competences.
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Direct effect, interpretation in conformity and primacy in times of COVID-19 – topic reflexions in an interjurisdictional approach in the EU

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator

Departing from the previous UNIO Blog’s contribution “VAT and customs duties in COVID-19 times in the European Union – do the ends justify all means?”, authored by Andreia Barbosa, some other EU law fundamental questions arose concerning the principle of direct effect and its directions, particularly when it is related to Directives’ rules, and its symbiotic relations with primacy and interpretation in conformity.

The consistent jurisprudence of the ECJ (despite doctrinal criticism on the matter) widely exposed its fundamental requirements when the direct effect of a Directive’s rule is being assessed, i.e., there is a need for it to i) create a right in the individuals’ legal sphere; ii) which has to be stated in clear / precise and unconditioned terms; iii) lacking of concretization’s need by a European or national rule.
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VAT and customs duties in COVID-19 times in the European Union – do the ends justify all means?

VAT text on coins

 by Andreia Barbosa, PhD Candidate at the University of Minho

Given the international public health emergency, it is paramount to adopt measures to mitigate the global spread of the virus and its underlying impacts at different levels – including at the international trade level.

The adaptation of the tax regime related to international exchanges of goods has already begun to be made, given the need to facilitate (through the reduction of taxation) the acquisition of equipment for the prevention and combat of COVID-19. The European Commission itself has addressed a note to the General- Directors of Tax and Customs Administrations of the Member States (and the United Kingdom), clarifying what exceptional instruments are available to help disaster victims and which can be used to tackle this health crisis without precedents.

In Portugal, the VAT exemption already enshrined in the transmission of goods free of charge, for later distribution to people in need, made to the Portuguese State agencies or other philanthropic organizations [in accordance with the provisions of in articles 51 to 57 of Council Directive 2009/132/EC of October 19th, 2009, which determines the scope of Article 143 (b) and (c) of Directive 2006/112 / EC], was assumed as an instrument capable of promoting aid to the victims of the COVID-19.
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