Editorial of September 2022

By Alessandra Silveira and Pedro Madeira Froufe (Editors) 

The (near) future of the European Union: Remarks on the “State of the Union” Address, September 14, 2022

On September 14, 2022, Ursula Von der Leyen, President of the European Commission, delivered her third “State of the Union” address in Strasbourg. The two previous addresses by the President of the Commission were marked by the pandemic. Another kind of crisis conditioned this year’s “State of the Union” address: war. One key idea emerged from the address and was underlined by the President of the Commission: the war we face – which gives rise to many of the problems the Union and its citizens will have to deal with – was caused by Russia’s invasion of Ukraine.

Quite clearly, there is a direct perpetrator of the war being waged in Europe and, in a similar vein, an indirect culprit for the subsequent economic crisis, inflation, and the social and migratory crisis triggered by the war and which the Union will have to overcome: the Russian Federation and the Russian power centered and personalized in Putin. In other words, there was an assertion of political principle at play here; an attempt to make the Union’s geopolitical position clear. Similarly, Ursula von der Leyen proclaimed the impossibility of the European Union (i.e., the historical and values-based framework of integration) being defeated: “this is about autocracy against democracy.” In that sense, unless we relativise the preconditions of integration and the “Union of law”, there is an irreconcilability in conceptual and civilizational perspective that determines the proclamation that Ukraine cannot succumb in these terms.

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Holiday break

By Editorial Board 

Dear readers,

We will be taking a short break for summer holidays. We will resume our regular publishing schedule on the week of 5 September 2022.

In the meantime, we are always open to receiving new academic contributions from our readers. If you have an innovative, dynamic, thoughtful piece that you believe would fit in this blog, feel free to send it to us at: unio.cedu@direito.uminho.pt.

If you would like to catch up on some reading on EU matters please check our news, commentsessaysreviews, and case law of the ECJ sections. Do not forget to subscribe to the blog by filling your email on the “FOLLOW THE OFFICIAL BLOG OF UNIO” section in the sidebar so you can be updated on all our latest posts.


Pictures credits: MariaAge

Notes on European defense and the signs of a new world and European order

By Pedro Pereira (Master's Student in EU Law at the University of Minho)

1. Introduction

Defense policies in the European Union (EU) and how they should be conducted are an old topic. In any case, it is defensible that i) the fact that European defense was provided by the United States of America (USA) during the historical period of the Cold War, as well as ii) the circumstance that in more recent times, European defense was materialized and operationalized through the North Atlantic Treaty Organization (NATO) decisively contributed to the deepening of the rights of the European citizen and to the intervention of EU Member States in the development of sociality – something that shaped the way European integration was being built around the Rule of Law and the Welfare State.

The hypothesis of a progressive gap in transatlantic relations (EU and US) – or, at least, the revival of this debate – returns whenever an external threat to European security arises. But world geopolitics may actually be at a turning point, motivated mainly by the return of war, due to the Russian Federation’s invasion of Ukraine– which requires a reassessment of European strategies in terms of foreign policy, security and defense. Recent events, in a way, contradict the thesis of an inevitable European dependence on the US, as well as urge a restructuring of the EU’s defense – which, despite still depending on NATO, aims to be more robust and autonomous. To this extent, the change in the way the EU presents itself on the international scene may be imminent.

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Nuclear energy is “green”: now what?

By Manuel Protásio (PhD Candidate at the University of Minho)

In the beginning of July this year, the European Parliament voted in favour of a proposal on labelling natural gas and nuclear power as climate-friendly investments. For the first time, Parliament did not object to the Commission’s Taxonomy Delegated Act to include specific nuclear energy activities, under certain conditions, in the list of environmentally sustainable economic activities covered by the so-called EU Taxonomy. Although it is still early to read anything else besides the actual change in the taxonomy of the European Commission, the truth is that this conceptual change regarding nuclear energy can be seen as a major political statement regarding the future of energy in the European Union.

From a political point of view, it can be argued that this change comes from the urgent and dramatic context we are currently in, due not only to Climate Change but also to the geopolitical shift that has risen from the Russia’s war with Ukraine. Within this new global context, European Union’s political landscape also changed, particularly in what concerns energy policy and I believe this new taxonomy given to nuclear energy is also part of this new political landscape. Nevertheless, it is not our intention to bring forward a political analysis to this shift in European policy regarding nuclear energy, but to give a brief overview of whether nuclear energy should be labelled as a green energy and a climate-friendly investment and if so, how can this change help European Union’s objectives in becoming more self-sustainable in terms of energy production as well as achieving its goals under the Green Deal.

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Summaries of judgments: Openbaar Ministerie | BPC Lux 2 and Others

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 22 February 2022, X and Y v Openbaar Ministerie, Joined Cases C-562/21 PPU and C-563/21 PPU, EU:C:2022:100

Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedures between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Second paragraph of Article 47 – Fundamental right to a fair trial before an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies – Two-step examination – Criteria for application – Obligation of the executing judicial authority to determine, specifically and precisely, whether there are substantial grounds for believing that the person in respect of whom a European arrest warrant has been issued, if surrendered, runs a real risk of breach of his or her fundamental right to a fair trial before an independent and impartial tribunal previously established by law

Facts

Two European arrest warrants (‘EAWs’) were issued in April 2021 by Polish courts against two Polish nationals for the purposes, respectively, of executing a custodial sentence and of conducting a criminal prosecution. The persons concerned were in the Netherlands and did not consent to their surrender.

The Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) noted that, since 2017, there have been in Poland systemic or generalised deficiencies affecting the right to a fair trial, and in particular the right to a tribunal previously established by law, resulting, inter alia, from the fact that Polish judges are appointed on application of the Krajowa Rada Sądownictwa (the Polish National Council of the Judiciary; ‘the KRS’). The referring court furthermore noted that, according to the resolution adopted in 2020 by the Sąd Najwyższy (Supreme Court, Poland), the KRS, since the entry into force of a law on judicial reform on 17 January 2018, is no longer an independent body. In so far as the judges appointed on application of the KRS may have participated in the criminal proceedings that led to the conviction of one of the persons concerned or may be called upon to hear the criminal case of the other person concerned, the referring court considered that there was a real risk that those persons, if surrendered, would suffer a breach of their fundamental right to a tribunal previously established by law.

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A trial run for the EU’s co-regulatory approach: the Strengthened Code of Practice on Disinformation

By Miguel Pereira (Master in European Union Law from the School of Law of the University of Minho)

On the 16 June 2022 the Strengthened Code of Practice on Disinformation was signed and presented to the European Commission, marking the end of a year long process that revamped the original 2018 Code of Practice on Disinformation.

The Strengthened Code, following the lines of the 2018 Code, is a self-regulatory and voluntary mechanism by which participants of the digital economy assume commitments to combat disinformation online. It forms part of a wider strategy that has been developed by the EU institutions since 2018 but has assumed a central role in the EU’s response to phenomenon. The 2018 Code was particularly important to highlight the mechanisms that online platforms had developed (and could develop) to address the issues this threat posed to their services and allowed for closer cooperation between its signatories and the Commission, with special focus around two events: the 2019 European Parliament election and the Covid-19 crisis.

Notwithstanding the successes we have highlighted and the groundbreaking nature of the initiative, a 2020 assessment of the implementation of the code levied criticism at the lack of oversight, erratic reporting practices, vagueness of the commitments, relatively disappointing adherence by industry players and difficulty in evaluating its effectiveness and enforcing the commitments vis-á-vis its signatories. Based on this assessment, the Commission issued a guidance calling for a strengthening of the Code’s structure and commitments and laying out specific areas which merited improvement. The signatories heeded the call and led the review process, with the resulting Strengthened Code closely following the recommendations laid out in the Commission’s Guidance.

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Editorial of July 2022

By Pedro Madeira Froufe, Alessandra Silveira, Joana Covelo de Abreu (Editors), Carlos Abreu Amorim (Professor of Administrative and Environmental Law, UMinho) and Tiago Sérgio Cabral (Managing Editor) 

“European bloc” vs. “European network” – on the enlargement of the EU

The European Council of 23-24 June 2022 approved the granting of “candidate for accession” status to both Ukraine and Moldova. Prior to the granting of such status, there was a summit between the EU and the Western Balkans with the aim of preparing the environment and conditions for another prospective enlargement, involving Albania, Bosnia, Serbia, North Macedonia, Montenegro and Kosovo. Some of these States (such as Albania, North Macedonia, Montenegro and Serbia) are already formal candidates for membership – Turkey too possesses such a status. Georgia had formally expressed its wish to join and therefore applied for candidate status. However, the European Council felt that, for the time being, and particularly in view of the few guarantees provided that the problems linked to corruption would be overcome relatively easily, it was not yet appropriate to consider it as a candidate State, although it was felt that it should be given a “European perspective”.

It should be noted that the accession of a new State to the “European bloc” follows a set rules and is part of a dynamic of political consensus and commitment on the part of both parties –  i.e. the Union and the candidate State – and it is certain that this animus or firm and consensual political will ultimately be decisive, irrespective of compliance with the existing and legally enshrined criteria [Article 49 of the Treaty on European Union (TEU)]. Thus, a candidate State will not succeed if it does not profess, clearly and with commitment, the values which guide integration and which are a kind of “identity” of the Union: democracy, freedom, human dignity, equality, rule of law, respect for human rights and guarantee of protection of minorities (in essence, the values referred to in Article 2 of the TEU).

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REPOWER EU – A challenge and an opportunity

By Maria Barros Silva (Associate Lawyer at SRS Advogados – Energy and Competition Law) and Nuno Calaim Lourenço (Managing Associate at SRS Advogados – Energy and Competition Law)

1. Context

The energy sector is cyclical by nature. History offers several examples of market expansion followed by very sudden contractions. Unfortunately, the current crisis differs from previous ones. To put things into dire perspective, the European Union (“EU”) heavily relies on fossil fuel (gas, oil and coal) imports for its energy needs, amounting to circa 60% of gross energy consumption in the past 5 years. The EU imports 90% of its gas, with Russia previously accounting for 45% of those imports, as well as for 25% of oil and 45% of coal. Although European domestic production of renewable energy sources has increased significantly in recent years, the intermittent nature of the so-called “green energy”, coupled with limited renewable-energy storage and a drastic and intransigent reduction in the production of EU coal, lignite and gas has meant that the EU remains energy dependent.

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The future of Europe: “citizens with real experience” and the European Political Community

By Pedro Madeira Froufe (Editor) and Tiago Sérgio Cabral (Managing Editor)

1. The expression “citizens with real experience”, was used by President Emmanuel Macron in his speech on 9 May 2022 at the European Parliament.[1] 

This speech was delivered at the European Parliament’s traditional Europe Day session. This year, this session also marked the closing of the Conference on the Future of Europe. In fact, President Macron used that expression, addressing all those who were involved in the work of the Conference, highlighting the democratic exercise that meant the active participation of citizens, concretised in several proposals. According to Macron, these proposals are creative, as indeed the times we live in in Europe require.

2. The first striking feature of this speech has to do directly with the temporal contextualisation of President Macron’s programmatic ideas. A time of war. A time of war that effectively demands “creative efforts” in the search for European responses to the crisis that, from the outset, erupted because of the war. “Creative efforts’ which, undoubtedly and according to Macron, are more necessary today than they were in the past.

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Protecting Children’s Rights in the Digital Age: the new European strategy for a better internet for kids (BIK+)

By Maria Inês Costa (Master in Human Rights from UMinho)

Given the rapid technological evolution in the so-called Digital Decade, and the need for legal regulation in view of the emerging needs and circumstances that this evolution has brought about, the European Union has been taking a position to strengthen the protection of children’s rights in this context. One of the most recent paradigmatic examples of this approach is the new European strategy for a better internet for kids (BIK+), published in May 2022, about two years after the outbreak of the COVID-19 pandemic which increased the use of digital media.

According to Article 24(2) of the CFREU, “in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration[1], and to that extent, the digital transition should be carried out keeping in mind the advantages that these bring to children, for example, as a source of inexhaustible knowledge, but also the dangers it entails and the exacerbation of inequalities it leads to, when there is no governance of its use and access.

As per item 3 of the UN’s General comment N.º 25 (2021) on children’s rights in relation to the digital environment,[2] the children consulted asked questions regarding the new developments in the digital age that directly affect them – “I would like to obtain clarity about what really happens with my data… Why collect it? How is it being collected?”; “I am… worried about my data being shared” – and in the subsequent paragraph (item 4) one can read: “innovations in digital technologies affect children’s lives and their rights in ways that are wide-ranging and interdependent (…)”.

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