Category: News

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

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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?

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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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The EU reaction to Covid-19 crisis

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 by Joaquim Freitas da Rocha, Professor of Tax Law, University of Minho
▪

With the spread of the COVID-19 disease, Europe is facing an unprecedented and unparalleled crisis which requires special and exceptional solutions, particularly with restrictive effect. For sure, this is not an exclusive European problem, quite the contrary – it is a real pandemic situation, with global extent, threating and affecting all continents; even so, the following considerations will take into account only the European context and the European Union (EU).

This emergency crises requires special and exceptional solutions, carried out either by the EU itself and by the Member States, but, in any case, legal, temporary and proportional. Even in a context like this, it cannot be forgotten that the EU and all its Member States are democratic systems and all of them are based on the rule of law. Consequently, unconstitutional, disproportional and disruptive measures shall be avoided. Probably this is not the best moment to say so, but the COVID-19 cannot be the justification to put aside the European civilizational model based on solidarity, equality and democratic freedoms.
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Citizens pro Europe’s letter to the EU institutions

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Dear Presidents,

In the face of the health crisis lashing Europe and the world, and costing the lives of thousands of citizens, Citizens Pro Europe, a non-governmental organisation present in 10 EU-Member countries, would like to present a number of considerations, for this crisis calls for determination and courage from political leaders and democratic institutions, the industry, and European civil society. In these times of great need, we are all called upon to contribute our bit.

Firstly, we must work to save lives. Member States are the first line of defence. We want to thank all workers who make it possible for our fellow European citizens to be taken care of. In order for all national health systems to be able to absorb the avalanche of those seriously affected by COVID-19, these workers must have at their disposal all the necessary financial and material means.

Secondly, we would like to highlight the importance of a joint action by all Member States and European Institutions in this grave moment. We make an appeal to their political leaders to act, at all times, with solidarity, Europe’s true hallmark. In this sense, we regret some Member States’ decisions to ban the sale and distribution of essential equipment to other Member States. We are pleased to see that, owing to the European Commission’s intervention, these bans will not be put in place and that mutual assistance mechanisms are being implemented. In these times of great need, it is critical to maintain channels for trade and the distribution of essential goods on the common market open. We congratulate the European Institutions for their proposal of green corridors ensuring the transit of these goods. We condemn the obstacles to the freedom of movement of these merchandises taking place at the borders of several Member States. This is a very serious error that jeopardizes citizens’ lives and will notably hinder the economic recovery once this health crisis abates. The common market is a source of prosperity for all and a relying factor on the speedy recovery of our economies after this crisis. Today, it is an instrument that can save many lives.
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The European Union and covid-19

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 by Teresa Freixes, Professor of Constitutional Law and Jean Monnet Chair ad personam
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In these difficult days, many of us look up at the European Union, as no country is oblivious to this health crisis that we are facing. Many wonder what the EU is doing while the virus crosses borders, endangers the health and life of citizens and also likely causes a major economic crisis. More coordinated action by the EU is lacking in this regard, but we must remember all the framework: the EU has pre-standards that it is applying; it has reached important agreements to deal with the various issues in place and it is planning future policies so that the effects of the health crisis and its economic outcomes are as limited as possible.

To start, it should be noted that Decision 1082/2013 of the European Parliament and of the Council of 22 October 2013 on serious cross-border threats to health provides that: “Article 168 of the Treaty on the Functioning of the European Union (TFEU) states, inter alia, that a high level of human health protection is to be ensured in the definition and implementation of all Union policies and activities. That Article further provides that Union action is to complement national policies, is to cover monitoring, early warning of, and combating serious cross-border threats to health, and that Member States are, in liaison with the Commission, to coordinate among themselves their policies and programmes in the areas covered by Union action in the field of public health”.
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Artificial intelligence and PSI Directive (EU) – open data and the re-use of public sector information before new digital demands

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator

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In Ursula von der Leyen’s speech entitled “A Union that strives for more”, one of nowadays President of the European Commission’s priorities was to establish “a Europe fit for digital age”. In this sense, von der Leyen’s aspirations were to grasp the opportunities from the digital age within safe and ethical boundaries, particularly those deriving from artificial intelligence as “[d]igital technologies […] are transforming the world at an unprecedented speed”. Therefore, the President of the European Commission established that “[i]n my first 100 days in office, I will put forward legislation for a coordinated European approach on the human and ethical implications of Artificial Intelligence”. Last 1st December 2019, the European Commission took office, led by President Ursula von der Leyen. As that time lapse is passing by, there is a need to understand how a Europe fit for the digital age is taking shape. There is to say, has the European Union already made efforts to meet that digital age?

In fact, recalling Digital4EU Stakeholder Forum, held in Brussels, on the 25th February 2016, Digital Single Market was thought by inception in order to materialise it as a primary public interest in action. Concerning digital public services, it was highlighted that some of them were not as transparent as they should and that “Governments need[ed] to look at how to re-use the information already available […] and open up the data they h[ad], while adapting to current trends and making use of public services easy and simple”. In order to do so, this forum established that “Member States should implement the once only principle: once only obligation, re-use of data, making the best use of key enablers and thinking cross-border services from inception”.
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Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development

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 by José Igreja Matos, President of the European Association of Judges
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1. Stating the obvious

The reference for a preliminary ruling, provided for Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union is an essential instrument for the European Union and, in particular, for national judges.

It is aimed to guarantee the uniform interpretation and application of EU law by offering to the courts and tribunals of Member States a procedure to acquire from the Court of Justice of the European Union a preliminary ruling concerning the interpretation of EU law or the validity of acts adopted by the institutions of the Union.

As easily predictable, the impact of a preliminary ruling procedure in EU legal system is immense also because the rulings of European Court of Justice (ECJ) are assumed as generally binding.

The ECJ itself does not have a power to enforce the accurate application of EU law; this is the reason why national courts or tribunals are obliged to bring the matters in question before the Court as frontrunners of the application of EU law.

The reference for a preliminary ruling is the only way for the national judges to directly convey with ECJ. This procedure helps the ECJ control on how the national courts apply EU law providing the uniformity and certainty essentials to the success of our Union.

Another aspect of major significance could be furthermore underlined: the preliminary ruling also ensures the protection of the rights of individuals. EU laws, in particular the criminal law, fall to be interpreted in accordance with the Charter of Fundamental Rights. The Article 6(1) of the Treaty of European Union affirms: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties”. In general terms, the Charter applies to Member States when they implement Union law (Case C-292/97 Karlsson and Others); therefore, the interpretation of the Charter provisions tends to be, if not now, in the foreseeable future, a fertile ground for the use of the preliminary ruling procedures.

The Member States are bound to respect fundamental rights in judicial cooperation, for instance, if a Member State is extraditing someone to another Member State in accordance with the scheme established by the European Arrest Warrant Framework Decision.
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Europe at the crossroads: the importance of the elections to the European Parliament

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by Carlos Botelho Moniz, Chairman - Portuguese European Law Association
 ▪

European Union citizens will be called to the ballot boxes between 23 and 26 May 2019 to elect the members of the European Parliament for a new 5-year term that will last until 2024. It will be the ninth time, since the first direct election in 1979, that the members of the European Parliament are directly elected by citizens through universal suffrage, in elections held during the same time period in all the Member States of the European Union.

It is the largest example of transnational democracy at work in the world, involving hundreds of millions of voters and its mere occurrence on a continent that over the centuries, particularly in the 20th Century, was plunged into devastating conflicts between the States that today comprise the EU, is a powerful reminder of the strength of democratic ideals and the fundamental importance of the European Union to guarantee peace, security, justice and a balanced, sustainable economic development of our continent. ​
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Europe’s hopes and fears

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by Mariana Canotilho, Editor
 ▪

According to the latest Eurobarometer, published in December 2018, immigration is the EU citizens’ main concern at the moment. With terrorism quickly falling, citizens are increasingly worried about Member States’ public finances (again!), the economy, and climate change (which is reaching new highs in every barometer).

The common feature between all these concerns is the fear of losing one’s way of life. European democracies are supposed to be about just that – democracy – but also about social cohesion, a broad catalogue of fundamental rights (including social and economic rights), freedom and peace. A citizen of a EU Member State expects to ‘live a good life’; a safe and prosperous life, using his or her capabilities to the fullest. A life that is free from fear of poverty, of economic and social turmoil and of uncertainty.

The multiple and complex crises of the last decade have highlighted that such a life is no longer possible for many people, in the EU. In a way, all the crises have flown into the big sea of the Union’s fundamental problem, which seems to be a crisis of solidarity. Solidarity towards migrants, who flee from war and disaster, but also towards southern countries dealing with economic and social upheaval (due to decisions that were not only their fault) or eastern European countries facing a scary turn in the direction of ‘illiberal democracies’. The Union’s answers have been late and not nearly enough.
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