On the triggering of the EU’s conditionality mechanism: what has been done and what could follow

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Gonçalo Martins de Matos (Master in Judiciary Law by the University of Minho)
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            When the Court of Justice of the European Union (CJEU) delivered, at the beginning of the last year, the two landmark judgements Hungary v. Parliament and Council (Case C-156/21) and Poland v. Parliament and Council (Case C-157/21), the conditionality mechanism created by Regulation (EU, Euratom) 2020/2092 for the protection of the Union’s budget[1] definitely gained the green light for its implementation, in the sequence of which the Commission adopted the guidelines of application of said mechanism. On 27 April of the same year, the European Commission formally announced it would be triggering the conditionality mechanism against Hungary. After an intense period of negotiations between Brussels and Budapest, the European Commission adopted, on 18 September, a proposal on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary[2] (COM(2022) 485 final), following which the Council of the EU adopted, on 18 September, an implementing decision on the measures proposed by the Commission.

            Before we proceed with the analysis of the proposed measures and their impacts on the protection of the rule of law, we must briefly provide the necessary legal framework. As we have discussed before, the intention behind the adoption of Regulation (EU, Euratom) 2020/2092 is “the protection of the Union budget in the case of breaches of the principles of the rule of law in the Member States”, as is set out in Article 1 of the same Regulation. Article 3 of this Regulation establishes situations that may indicate a breach of the principles of the rule of law, and Article 4 stipulates the conditions for the adoption of the necessary measures to protect the same principles. Article 5 lays down the measures that can be adopted in case the Commission finds that the principles of the rule of law have been breached under the described terms, following the procedure set out in Article 6 of the Regulation. We further add that Article 5(3) enshrines a principle of proportionality when adopting those protective measures. Article 6(1) determines that the Commission may resort to the conditionality mechanism unless it considers that other procedures set out in Union legislation would allow it to protect the Union budget more effectively. Seeing that the European Commission has already resorted to Article 7 TEU and to several infringement procedures regarding the Hungarian government’s various breaches, the conditions were met to activate the conditionality regime.

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Lula’s presidency: what to expect from the European Union – Brazil relationship

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José Manuel Fernandes (Member of the European Parliament and Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil)
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Lula da Silva’s victory in Brazil’s 2022 presidential elections is an opportunity for the strengthening of relations between the European Union and Latin America’s largest country. Taking advantage of the new Brazilian government taking office on January 1, 2023, as well as the unfortunate events of January 8, when protesters invaded Brazilian institutions. In this text, I propose to address what I hope and wish for the bilateral relations between the EU and Brazil in the coming years. For my part, and as Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil, I take what I write not only as analysis, but also as political commitment.

The size and importance of Brazil continues to elude most Europeans, even the main political leaders. We perpetuate a distant and incomplete vision of what Brazil actually is: a country that represents half of Latin America, both geographically and demographically; the 10th economy in the world; one of the five largest agricultural producers in the world. It is time to recognize Brazil as a global giant, and to treat it as such.

The key word must be “cooperation”. Without paternalism, by mutually recognizing potentialities and weaknesses. Cooperation must have as common ground the values of freedom, democracy, the rule of law, and the uncompromising defence of human dignity and human rights. Environmental sustainability and inclusion are also essential elements for the economic development we must conquer.

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The system of investigation of offences committed by judges and prosecutors in Romania, once again under the attention of the CJEU

On By revistaunioIn Essays1 Comment 
Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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By the decision issued on 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the second of which concerns the compatibility of the new system of investigation of offences committed by judges and prosecutors, as a result of the dismantling of the famous Special Section (SIOJ), criticized by all relevant international bodies and regarding which the Court of Justice of the European Union (CJEU) itself expressed serious doubts related to the compatibility with the European Union law.

Thus, by the judgment issued 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 and Others, the Grand Chamber of the Court of Justice of the European Union established that Article 2 and the second subparagraph of Article 19(1) of the TEU, as well as the Commission Decision 2006/928 of 13 December 2006 establishing a Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (CVM) must be interpreted as precluding national regulation that provides for the establishment in the Public Ministry of a specialized section that has exclusive competence to investigate the offences committed by judges and prosecutors without the establishment of such section being justified by objective and verifiable requirements related to the sound administration of justice and without being accompanied by specific guarantees that allow, on the one hand, to remove any risk that this section may be used as an instrument of political control over the activity of those judges and prosecutors likely to affect their independence and, on the other hand, to ensure that such competence can be used in relation to the latter in full compliance with the requirements resulting from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

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The role of associations of judges in defending the rule of law: legitimacy of unconditional locus standi in situations where they seek to obtain effective jurisdictional protection in areas regulated by European Union law

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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)].
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On 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the first of which concerns the legitimacy of locus standi and the procedural interest of professional associations of judges in order to promote and defend the independence of judges and the rule of law, as well as to safeguard the status of the profession, in situations where associations seek to obtain effective jurisdictional protection in areas regulated by Union law.

The litigation initiated by the Romanian Judges’ Forum Association respectively by the Movement for Defending the Status of Prosecutors Association, two of the most important associations of Romanian judges and prosecutors, seeks the annulment of administrative acts regarding the appointment within the Prosecutor’s Office attached to the High Court of Cassation and Justice of prosecutors who will conduct criminal investigations in corruption cases regarding judges and prosecutors, given that, in Romania, the competence of the National Anticorruption Directorate in this field has been completely removed.

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New UNIO issue now online

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By the Editorial Team
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The Editorial Board is happy to announce that a new issue of the UNIO – EU Law Journal is now online. The 8(1) issue of UNIO mixes contributions from highly respected scholars and from young scholars and addresses issues such as democracy and rule of law, protection of the environment, discrimination and equality, intergenerational solidarity  and  social  sustainability, consumer protection, and research in humanist legal sciences.

This issue also marks a major change in the publishing schedule at UNIO. UNIO wants to be able to continue delivering high-quality publications while keeping their timeliness. For this reason, we will start publishing on a rolling basis. That is to say, papers will be published as we receive them and compiled in an issue afterwards.

We hope this new system pleases both our readers and authors and would like to remind you that we are accepting submissions at UNIO and also at our blog.

You may find UNIO’s 8(1) issue here.

Lula da Silva is President of Brazil once again: are we closing a cycle of lawfare?

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By Guilherme Torrentes (Master in Human Rights from the University of Minho)
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On January 1, 2023, Luiz Inácio Lula da Silva was sworn in as President of Brazil for the third time, after one of the fiercest electoral disputes since the re-democratization of the country (which occurred in 1985), in which Lula da Silva defeated Jair Bolsonaro. It is perhaps the end of a cycle of “lawfare” – a term that can be defined as the strategic use of law for the purpose of delegitimizing, harming, or annihilating an enemy[1] – that is, the perverse use of legal rules and procedures for the purpose of political persecution. This cycle of lawfare was initiated in a tentative way by what became known as “Mensalão” (a “mega” or “maxi” judicial process that culminated in the conviction of several political members of Lula’s first government for corruption) and worsened with the impeachment process of President Dilma Roussef and “Operação Lava Jato” (another “mega” judicial process that culminated in the illegal imprisonment of Lula for 580 days).

This cycle of lawfare has jeopardized the continuity of the democratic rule of law, as the Brazilian judiciary and criminal process have been instrumentalized by the exception and subjectivity undesirable to its performance, in order to achieve the desired political ends. It is worth noting that in 2018, the Brazilian State failed to comply with a recommendation of the United Nations (UN) Human Rights Committee to guarantee Lula the right to run for the presidential elections of that year, invoking its domestic laws to not apply Article 25 of the International Covenant on Civil and Political Rights (which guarantees every citizen the right and the opportunity, without unreasonable restrictions, to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors).[2]

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Editorial of January 2023

On By officialblogunioIn EditorialsLeave a comment 
By Editorial Team
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Checks and balances in the EU’s current context – how to address new and old affections to its institutional functioning?

In the past weeks the European news have been marred by headlines exposing a corruption scandal concerning a supposed bribery of EU Officials. Among them, European Parliament Vice-President Eva Kaili was arrested in the context of a Belgium investigation, demanding a quick response from this EU institution. The President of the European Parliament, Roberta Metsola, addressed the issue, underlining that “open, free, democratic societies are under attack”, leading to Ms. Kaili suspension from her duties of Vice-President. And, in the follow-up, on December 15, a pack of reform measures was announced to be implemented in the year of 2023. It relates to the reinforcement of European Parliament protection systems of whistleblowers, the prohibition of non-official groups of friendship, the revision of the ways to scrutinize how MEPs follow their code of conduct and the exhaustive analysis how they interact with third countries.

In addition these announced concrete measures, a wider and deeper reflection is needed to understand which checks and balances act within the EU institutional core, namely: i) which principles guide the EU institutional system’s functioning and which is its legitimacy source?; ii) why it is mentioned an institutional balance and not a separation of powers; iii) in which way that sui generis institutional setting ensures a checks and balances system; and iv) in which extent the transparency principle can be compatible with EU’s decision-making process efficacy?

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Summaries of judgments: Staatssecretaris van Justitie en Veiligheid | Senatsverwaltung für Inneres und Sport

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Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right of residence under Article 20 TFEU), Case C‑624/20, EU:C:2022:639

Reference for a preliminary ruling – Directive 2003/109/EC – Status of third-country nationals who are long-term residents – Scope – Third-country national with a right of residence under Article 20 TFEU – Article 3(2)(e) – Residence solely on temporary grounds – Autonomous concept of EU law

Facts

In 2013, E. K., a Ghanaian national, obtained, under Article 20 TFEU, a residence permit in the Netherlands as a family member of a Union citizen, on account of the existence of a relationship of dependency between herself and her son, who holds Netherlands nationality. In 2019, on the basis of the national legislation transposing Directive 2003/109 into domestic law, she submitted an application for a long-term resident’s EU residence permit. However, the Netherlands authorities refused her application, on the ground that the right of residence obtained under Article 20 TFEU is temporary in nature, within the meaning of that directive, and therefore excluded from its scope of application.

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The securitization of health: on the protests against the Chinese “zero-COVID” strategy

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By Rafaela Garcia Guimarães (Master in Human Rights from the School of Law of the University of Minho)
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The approach to health as a security issue is supported by the theory of securitization developed by researchers from the Copenhagen School, according to which threats to security are socially constructed, through a speech act – whether oral, written, through images and other means of communication. Discourse acquires a fundamental role in the securitization process, as it is through the act of speech that the securitizing agent (usually an authority) exposes a demand to the public as a threat to its security – a threat that may or may not be real[1].

Health securitization occurs when a disease is presented to the public as an “existential threat”. This can happen with the onset of a disease with little scientific knowledge, no easily identifiable treatment or cure, high mortality or transmissibility, and especially when they are associated with a visceral fear of pain or suffering.

Securitization results in the adoption of exceptional measures, mainly due to their urgent nature, which may lead to containment, surveillance and coercion measures. Moreover, the policy of exception is presented to society as the only means of survival – and fear makes restrictive (and even suspensive) measures for the exercise of fundamental rights more easily accepted.

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Editorial of December 2022

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By Nataly Machado (Master in European Union Law from the School of Law of the University of Minho)
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What if mechanisms of solidarity had more effectiveness beyond the borders of the European Union? At least for the climate crisis?

On 24 November last, the European Union (“EU”) energy ministers reached an initial agreement, albeit with some differences[1], on the content of the proposed Council regulation on enhanced solidarity for further temporary emergency measures aimed at curbing high energy prices through better coordination of joint gas purchases on world markets, with the objective of the Member States not competing with each other. Furthermore, they decided on gas exchanges across borders, with “measures enabling Member States to request solidarity from other Member States in cases where they are unable to secure the quantities of gas essential to ensure the operability of their electricity system”[2], and reliable price reference standards, which will provide stability and predictability for Liquified Natural Gas “LNG” transaction prices, with the new index until 31 March 2023. Also, the EU energy ministers agreed on the content of a Council regulation laying down a temporary framework to accelerate the permit-granting process and the deployment of renewable energy projects[3].

The abovementioned shows that solidarity in the context of the EU should have a more pragmatic and concrete approach – and explained by the cooperation between Member States –, since it imposes legal obligations, such as being loyal in mutual relations and undertaking all necessary efforts to achieve common goals. In other words, the possibility of justification for an imposition of solidarity linked to legal duties remains clear, since it is a question of a sharing of common tasks/responsibilities[4].

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