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

On November 15, 2021November 15, 2021 By officialblogunioIn EssaysLeave a comment

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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Work-life balance measures in the EU and the impact of Covid-19 on its progress

On November 8, 2021November 8, 2021 By officialblogunioIn CommentsLeave a comment

Maria Inês Costa (Master’s student in Human Rights, UMinho)

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The implementation of Directive 2019/1158 of June 20, 2019, of the European Parliament and the Council on work-life balance for parents and carers[1], came about two years after the publication (in 2017) of a proposal by the European Commission (EC). In 2008, a directive on maternity leave was proposed, which provided for more time on leave and more rights for mothers; however, in 2015, the Commission withdrew the proposal, basing its decision on the persistent difficulty of reaching an agreement among the co-legislators, while ensuring that it would continue its efforts to propose a broader initiative.[2] Thus, the 2017 proposal was announced as part of a set of measures to be implemented that, based on the policies and protection of the EU acquis and existing European legislation, aimed to improve existing rights, with a focus on equal treatment and gender equality. Hence, the specific objectives to be pursued are mentioned in this proposal: to improve access to leave and flexible working arrangements, and to increase the take-up of leave by men.[3]

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Editorial of November 2021

On November 2, 2021November 2, 2021 By officialblogunioIn EditorialsLeave a comment

By Rafael Leite Pinto (Master in EU Law – University of Minho)

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The regional impacts of climate change in the European Union – a cohesion perspective

Although concern about climate change is typically a higher priority in western countries, especially in Europe, the understanding of its regional impacts is not widespread. The prevailing line of thinking is that developing countries will be the most affected and Europe will experience minor changes. While it is clear that developing countries will be affected the most, the lack of knowledge about local impacts can lead many citizens and politicians to delay taking concrete action. In this article, based on the new IPCC report and the new visual tools provided, we summarize the impacts of climate change in Europe, on rising temperatures, sea level, precipitation, and the incidence of extreme events with an overarching view on the internal cohesion policy for climate change to guarantee a fair and just transition, within the European Union.

1. The IPCC report

The new report by the Intergovernmental Panel on Climate Change (IPCC)[1] made headlines as being the most frightening and alarming ever. In fact, nothing should concern us more than a report based on more than 14,000 high-quality studies, which clearly states that “each of the last four decades has been successively warmer[2]” and that human action is to blame.

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On the reform of sexual offences in Spain

On October 25, 2021October 25, 2021 By officialblogunioIn EssaysLeave a comment

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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Control, audit and investigation of fraud with European Structural and Investment Funds – Dichotomy between fraud prevention and swift execution of European funds

On October 18, 2021October 18, 2021 By officialblogunioIn CommentsLeave a comment

Nuno Almeida (Master’s in EU Law at the University of Minho)

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The European Structural and Investment Funds (ESIF) made available by the European Union will be the highest ever, a fact that will raise new challenges regarding their control and effectiveness. ^[i] The European Court of Auditors has already expressed its concern about the inefficiency shown by the management authorities of operational programs in the control of the application of European funds, a fact duly expressed in its Report No. 6/2019, prepared on the basis of the audit of the activity of the managing authorities of Member States at the different procedural stages. Thus, in terms of fraud prevention, detection and combat, there was a small number of identified cases in the 2007-2013 programming period, with fraud detection rates between 0% and 2.1%^[ii]. According to the European Court of Auditors, this figure is not representative of the level of fraud identified, as several cases of fraud were detected but not communicated to the competent authorities. As a result, it will be necessary to assess the current capacity of national institutions with control and auditing functions, especially regarding their real effectiveness in detecting irregular or illicit situations, since, as it should be recalled, approximately 80% of European funds are executed by Member States. Furthermore, given the exceptional need for swift execution of European funds, it is important to consider whether the pressure that will be placed on the authorities involved in this plan will inevitably lead to a concentration of all means in the execution area. In fact, it is expected that there will be predetermined levels or objectives for the execution of operational programs, a fundamental factor for the evaluation of the activity of these entities, which may weaken the identification of irregular or illicit situations, that is, a prevalence of execution in relation to prevention, a dichotomy that will require measures from the responsible entities if proven true.

On the national level, on May 21, 2021, Law No. 30/2021 approved special public procurement measures for projects financed or co-financed by European funds, a legislative change arisen from a need for speed in execution and application of European funds made available by the European Union, by simplifying public procurement procedures, as well as from the need to reinforce the fundamental principle of transparency, achieved through the implementation of mandatory electronic disclosure procedures and the reinforcement of the Court of Auditors’ intervention in the oversight of procedures.

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Editorial of October 2021

On October 11, 2021 By officialblogunioIn EditorialsLeave a comment

By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)

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Strange times and the need to remember the obvious…on the recent decision of the Polish Constitutional Court

The recent judgment of the Polish Constitutional Court calls into question one of the base pillars of the European legal order – namely the primacy of EU law over national law. As a result, it is likely that the European Commission will bring infringement proceedings against Poland. If the CJEU finds that Poland has not complied with its judgment, it may impose a financial penalty.

However, there is a possibility for de-escalation which would allow for this imbroglio to be first be resolved politically. This was the case regarding the German Constitutional Court’s astonishing decision of 5 May 2020, concerning the ECB’s bond buying programme for purchasing Member States’ public debt on the secondary market. The crux of the matter was that the German Constitutional Court’s judgment followed a judgment by CJEU which settled the issue of the validity of the ECB’s bond buying programme. The German Constitutional Court in its decision disregarded the decision of the competent court under Article 19(1) TEU, according to which the CJEU ensures that the law is observed in the interpretation and application of EU treaties. It did not take long for the so-called “illiberal democracies” in Europe to welcome the ruling of the German Constitutional Court, using it to subvert judicial independence and freedom of expression as recognised by the EU. Fortunately, the good sense of the German governmental and parliamentary authorities under Angela Merkel’s leadership prevailed – and the European institutions did not have to act accordingly (at least immediately). It is important to note that in a second decision regarding the ECB’s bond buying programme also appeared to walk back from the edge of the cliff.

In any case, such episodes recommend revisiting the elementary notions of European integration law, because there are occasions when certain civilisational achievements still need to be defended, and the reason behind some choices needs to be recalled. What functional reason justifies the primacy of Union law over national law? Does Union law take precedence over national constitutional norms (or, on the contrary, can it be declared unconstitutional or set aside on the grounds of alleged unconstitutionality)?

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Venezuela as a third country before the ECJ

On September 27, 2021October 20, 2021 By officialblogunioIn Case notesLeave a comment

Tiago Paixão (Master’s in Administrative Law - The Author’s opinions are his own and do not bind any other person or entity)

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The Bolivarian Republic of Venezuela (“Venezuela”) brought an action for annulment before the General Court to annul certain restrictive measures imposed by the Council of the European Union here. Those restrictive measures were imposed because of concerns about democracy, rule of law and human rights principles and are set out on Regulation 2017/2063, Regulation of Execution 2018/1653 and Decision 2018/1656.

Concretely, the General Court had to solve two major questions, before the substance of the annulment. On the one hand, to determine if Venezuela is a legal person for Article 263 TFUE and, in case of having given a positive answer, if Venezuela is directly affected by those measures.

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

On September 20, 2021 By officialblogunioIn Essays3 Comments

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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What to expect from the European Platform on Combating Homelessness?

On September 13, 2021September 20, 2021 By officialblogunioIn CommentsLeave a comment

Cecília Pires (PhD Candidate at the University of Minho)

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On 21 June of 2021, under the fourth Portuguese Presidency of the Council of the European Union (“EU”), its Member States, European institutions, political representatives, homeless people, and civil society signed the Lisbon Declaration on the European Platform on Combating Homelessness, during the High-Level Conference on the European Platform on Combating Homelessness.

The initiative is a result of the orientation at Article 3 of the European Pillar of Social Rights Action Plan, which predicts the urgency of European practices and policies that can promote access to not only the quality and affordable houses but also the essential services. It is aimed to guarantee the human right to adequate housing.

The primary basis of the commitment is: Article 3 of the Treaty on European Union (“TEU”), which mandates the Union to combat social exclusion and promote economic, social, and territorial cohesion; principle nº 19 of the European Pillar of Social Rights (“EPSR”), that addresses the need for action to ensure housing; housing assistance, adequate shelter and services for those in need and people experiencing homelessness; and the principles nº 1 and nº 11 of the 2030 United Nations (“UN”) Sustainable Development Goals (SDGs), which deal, respectively, with the duty to end extreme poverty, including homelessness, and to make cities and human settlements safe, resilient and sustainable with ensuring access to all adequate, safe and affordable houses.

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