Judicial review of EPPO procedural acts and decisions: a disruptive and resilient architecture?

On By officialblogunioIn EssaysLeave a comment

Crime Scene

by Luis de Lemos Triunfante, Judge-Second National Expert at Eurojust Portuguese Desk
▪

“The creation of a European Public Prosecutor’s Office will enable us to have the missing tools: kick investigations across the Union and exchange of information in real time. The European Public Prosecutor will work together with the Deputy Prosecutors of each of the 17 participating countries and congregate national expertise by coordinating them at EU level. The objective is to create a strong, independent and effective body that develops expertise in the fight against financial crime throughout the EU. The 17 Member States concerned will now move the process forward, hoping that others will join soon. The Commission has always defended the interest of all Member States and this initiative is open to all”, Sharing sovereignty to combat financial crime – Jean-Claude Juncker.

DH-CII (Human Rights Centre for Interdisciplinary Research), in collaboration with CEDU (Centre of Studies in EU Law) and the Union of Magistrates of the Public Prosecutor’s Office, organised, on 18 May at the Law School of the University of Minho, an International Criminal Law Congress about “The new challenges of Judicial and police cooperation in the European Union and the implementation of the European Public Prosecutor’s Office”.

The aim of that initiative was to bring to the discussion the main issues that lie today in judicial and police cooperation, mutual recognition, harmonization and the protection of human rights in the European Union. It also intended to analyse the challenges surrounding the implementation of the European Public Prosecutor’s Office (EPPO). In a special way, a critical and prospective look was taken on the Proposal for a Council Regulation establishing the EPPO under discussion, taking into account the current state of negotiations, the main aspects of substantive criminal law and substantive Criminal proceedings; the Statute and the institutional design of the EPPO (matters of institutional law) and the relations between the EPPO, Eurojust and OLAF.

One of the main issues of the EPPO is the judicial review.
Continue reading “Judicial review of EPPO procedural acts and decisions: a disruptive and resilient architecture?” →

Editorial of June 2017

On By officialblogunioIn Editorials1 Comment

spiral-planetary-nebula-1109044_1920

by Alessandra Silveira, Editor
▪

Waiting for a federal big bang in EU? Updating the theory of federalism in times of liquid modernity

On May, 22-23, at Nova Law School, Lisbon, took place a conference on “The federal experience of the European Union: past, present and future”, organized by Professor Nuno Piçarra. Sixty years after the signing of the Treaty of Rome and twenty-five years after Maastricht, the EU may be living a true moment of “constitutional mutation” that may dramatically change its identity. Yes, it is possible to re-found the EU without revising the Treaties (as constitutional mutation is nothing new and it has been working since the beginning of the integration) and without committing “semantics imprudences” (avoiding the “blasted” nature of terms such as constitution and federation). Therefore, this is the right time to address the EU federative experience from an historic perspective and to analyse the role which such an acquis may play in the shaping of the future EU. For these reasons, the purpose of that conference was to tackle the following three questions. First, how should we evaluate the EU federative experience, sixty years after the signing of the Treaty of Rome? Second, which are the main challenges facing the EU in the light of its federative experience? Third, do these challenges and respective answers suggest that the European federative dream is over, or just undergoing a new form of development?

Continue reading “Editorial of June 2017” →

Modernisation and supermodernisation of the state aid law – silent deepening of European integration?

On By officialblogunioIn CommentsLeave a comment

architecture-1605412_1920

by Ana Filipa Afonseca, student of the Master´s degree in EU Law of UMinho

▪

In general, the Member States have always had a bad understanding about the importance of the prohibition of the state aid, pursuant Article 107, TFEU, in fact, in 1966 and in 1987, the Member States rejected the proposal of the Commission to assume a legal definition of aid.

Truly, in the past – not so distant – Member States escaped the application of the prohibition of the state aid in a simple way: they didn’t notify the European Commission about the aid that they had conceded to their companies.

The importance of the state aid prohibition started to become clear to the Member States when they noticed this article plays an important role on improving the growth of the internal market. And the main reason this prohibition was learned by the Member States was due to its control for a non-differentiated growth of the Member States and distortion of competition. Besides that, it ended an obscure and dubious policy practice of the destination of public funds to the eyes of the citizens… until, shall we say, the beginning of the crisis in 2008.
Continue reading “Modernisation and supermodernisation of the state aid law – silent deepening of European integration?” →

The latest on the Zambrano front – the Chavez-Vilchez judgment

On By officialblogunioIn Case notesLeave a comment

snow-933283_1920

by Sophie Perez Fernandes, Junior Editor
▪

Back in 2011, the ECJ delivered a pivotal decision in the Zambrano case. With reference to the Rottmann case, the ECJ held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”

By this criterion are included within the scope of application of EU law situations which, a priori, fall within the competence of the Member States (the so-called purely internal situations). The Zambrano-criterion indeed allows EU citizens to rely on their status as EU citizens against their own Member States of nationality even when they have not exercised their rights of free movement. The immediate consequence of the Zambrano ruling was to preclude Member States (in casu, Belgium) from refusing third country national parents of minor EU citizens a right of residence in the Member State of residence and nationality of those children in so far as such decisions would result in the children having to leave the territory of the Union as a whole.

The subsequent case-law gave a rather narrow interpretation to the criterion, as can be confirmed by the judgments delivered in McCarthy, Dereci, Iida, O and S, Ymeraga, Alokpa and NA. The ECJ held the Zambrano-criterion as a specific criterion as it relates to “very specific situations” in which a right of residence may not, exceptionally, be refused to a third country national without the EU citizenship enjoyed by (minor) Member States nationals being (fundamentally) undermined. It thus follows that any right of residence conferred on third country nationals pursuant to Article 20 TFEU are rights derived from those enjoyed by the EU citizen of which they are members of the family and have, in particular, “an intrinsic connection with the freedom of movement and residence of a Union citizen”.

Without calling into question or reversing this line of jurisprudence, the ECJ seems however willing to revive the Zambrano-criterion in more recent cases, addressing some issues so far left in the open. In CS and Rendón Marín, though admitting the possibility of limiting the derived right of residence flowing from Article 20 TFEU to third country nationals (limitation based on grounds of public policy or public security), the ECJ framed the scope of such a limitation, making its application conditional on a case-by-case analysis and upon respect for fundamental rights as protected by the CFREU, namely Articles 7 and 24(2) CFREU. The ECJ further clarified the scope of the Zambrano-criterion as the ultimate link with EU law for the purposes of the protection of fundamental rights in the Chavez-Vilchez judgment delivered last week.
Continue reading “The latest on the Zambrano front – the Chavez-Vilchez judgment” →

Neutrality or covert discrimination? A brief review of the decisions of the Achbita and Bougnaoui cases

On By officialblogunioIn Case notes1 Comment

3277743638_c2b47b5815_o

by Cláudia Moreira, masters student at University of Minho
▪

The ban on wearing religious symbols, like the hijab or headscarf, the niqab and burka, is nowadays at the centre of controversies over which limits can be legitimately established for religious manifestations. In recent years, there have been many European countries which, given the strong Islamic presence in their territory, have understood that they should find legal solutions to the heated discussions about the use of women’s religious clothing. Belgium was the first European country in 2010 to ban the wearing of the burka in public spaces. It was followed by France, which, even though it had already adopted a law banning the use of religious clothing or symbols in public schools in 2004, based on the State secularity principle, only more recently extended the ban to the use the burka and niqab in public spaces.

The wide discretion that the European Court of Human Rights (ECHR) has been providing to Member States, in cases concerning religious symbols[i] and their usage limitation may, as well asserted Martinez-Tórron[ii], be the result of the ‘fear’ of propagating of radical ideals, which are harmful to European freedom. This fear, however, does not legitimize the adoption, under false aegis of principles, such as justice or equality of measures restricting religious manifestations.

Continue reading “Neutrality or covert discrimination? A brief review of the decisions of the Achbita and Bougnaoui cases” →

Editorial of May 2017

On By officialblogunioIn EditorialsLeave a comment

OLYMPUS DIGITAL CAMERA

by Pedro Madeira Froufe, Editor
▪

Europe: “Ceci c’est pas une pipe!”

Populism has manifested itself not only in the form of public (or at least published) streams of public opinion, but also through the result of (naturally) democratic and legitimate electoral acts. And such cases of populisms materialised in the exercise of representative democracy, generated in the democratic institutional functioning in the context of the rule of law, begin to not be unusual. Deep down, we have seen expressions of populism that acquire power and influence (sometimes determining), with an anti-democratic tendency, created by democracy itself.

Populism appears nowadays as especially adjusted, attractive and intellectually comfortable for a considerable part of the European and American population (in other words, for a large amount of the electorate). There are, as I see it, several reasons, mostly articulated, that cause this relative outbreak now with direct political consequences – that considerably surpass the juridical-constitutional dimension. Those causes are not exclusively attributable to dysfunctions in the dynamics of the democratic institutions.

Such reasons are rooted also in something deeper and concrete than the legal abstraction or the political activity and representation: it has to do, to a great extent, with our current way of life and cosmovision in the context of the technical societies of information and – why not say it – abundance. It should be noted that the intention is not to disregard the existence of reasons attributable to the bad juridical architecture and the bad political functioning (or even the bad performance of politicians); but they are not the only explanatory causes for populist phenomena that disturb democracy….

I won’t reflect or develop, at this occasion, the issue of the causes non-directly juridical, or institutional, of populism. They might also be sociological and cultural tendencies; they could be as well a reaction to extremisms, relativisms and the loss of collective references resulting from the erosion of gregarious institutions, social and natural. That erosion has a lot to do with the overvaluing and a revival of tendencies (neo)hedonist and (neo)utilitarianist which have been potentialized particularly well with the economic growth, modernity (especially in the post-war) and, lately, with the immediacy (created by technology and consequent globalisation). From the legal perspective, such relativism makes it difficult to understand normatively the basic principle of equality, turning it into a principle of the existential relativism: everything is equal to its opposite, blurring and even disabling normative senses, decisions and value options, as everything is equivalent.

Continue reading “Editorial of May 2017” →

Tensions between European Union Law and Private International Law – impact on cross-border mobility of companies

On By officialblogunioIn EssaysLeave a comment

business-254583_1920

by Jorge Ribeiro, PhD candidate at Universidad de Vigo
▪

Introduction

This essay intends to give a brief analysis on the relationship between European Union Law and Private International Law, particularly the impact on cross-border mobility of companies in the European space[i].

The Treaty on the Functioning of the European Union (TFEU) explicitly recognises freedom of establishment for companies. However, nowadays, a number of obstacles still persist regarding companies’ mobility as a result of the coexistence of the incorporation and the real seat doctrine. This is also due to the way in which the European Court of Justice (ECJ) case law has dealt with the free movement of companies.

It is argued that it would be welcome if the European legislator could take action, mitigating national private international law contrary to European fundamental freedoms[ii].

Dualism of rules

To determine which company law is applicable to a particular company, there are two existing theories: the real seat theory and the incorporation theory.

The real seat theory[iii] provides that the personal law of the company is the law of the country where it has its real seat (its principal place of business). Instead, according to the incorporation theory[iv] the company and its relationships are subjected to the law of the country where it has been incorporated, i.e. registered.

The major difference between the two theories is their effect on the cross-border transfer of the company seat, both from the home and host state perspective. The real seat theory brings limitations to the cross-border transfer of the real seat by making the company subject to different national legal order each time its real seat moves to another state[v]. Likewise a company from an incorporation state that wishes to move its administrative seat to a real seat state may not be recognized as a company in this host state, without dissolution in the home state.

Continue reading “Tensions between European Union Law and Private International Law – impact on cross-border mobility of companies” →

The Directive 2000/43/EC and the possibility of indirect discrimination by association: an analysis of the judgment CHEZ Razpredelenie Bulgaria (Case C-83/14)

On By officialblogunioIn Case notesLeave a comment

3028515993_643dbbd022_o

by Mariana Schafhauser Boçon, masters' student at University of Minho
▪

The Judgment of the Court of Justice of the European Union (Grand Chamber) in Case C-83/14, delivered on 16 July 2015, concerned a request for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad, about the interpretation of Article 1 and Article 2(1) and (2)(a) and (b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

The dispute in the main proceedings relates to the fact that, between 1999 and 2000, the CHEZ Razpredelenie Bulgaria AD – CHEZ RB, a Bulgarian electricity distribution company, installed the electricity meters of all the consumers of the ‘Gizdova mahala’ district, of the town of Dupnitsa (Bulgaria), inhabited mainly by persons of Roman origin, on the concrete pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas in the other districts the meters installed by CHEZ RB are placed at a height of 1.70 metres, usually in the consumer’s property, on the façade or on the wall around the property.

In December 2008, Anelia Georgieva Nikolova, owner of a grocery store in the ‘Gizdova mahala’ district, lodged an application with the Komisia za zashtita ot dikriminatsia – KZD (Bulgarian Commission for Protection against Discrimination) alleging that she was suffering direct discrimination on the grounds of nationality due to the practice at issue of CHEZ RB.

Firstly, KZD ruled that the practice at issue constituted an indirect discrimination prohibited on grounds of nationality. However, after that decision was annulled by a judgment of the Varhoven administrativen sad (Supreme Administrative Court), KZD decided that Anelia Nikolova had suffered a discrimination because of her “personal situation” and ordered CHEZ RB to bring discrimination against her to an end and to refrain from such discriminatory behaviour in the future.

Against that decision, CHEZ RB brought an appeal before the Administrativen sad Sofia-grad (Administrative Court, Sofia), which decided to stay proceedings and to refer ten questions to the Court of Justice of the European Union (ECJ) for a preliminary ruling. These questions were also examined by Advocate General Juliane Kokott in her Opinion.
Continue reading “The Directive 2000/43/EC and the possibility of indirect discrimination by association: an analysis of the judgment CHEZ Razpredelenie Bulgaria (Case C-83/14)” →

Humanitarian Visas and the X and X v. Belgium judgment (Case C-638/16 PPU)

On By officialblogunioIn Case notesLeave a comment

 

by Teresa Alves, masters' student at University of Minho
▪

The judgment in Case C-638/16 PPU, delivered by the Court of Justice of the European Union, on 7th March 2017[i] could represent a milestone in the history of the European Union, opening the door to an important legal path of access to international protection in the Member States and improving the Europe’s asylum policy. Particularly in a context of migration crisis that the European Union is trying to solve, adopting different measures. These measures include strengthening border controls, preventing human trafficking and trying to dismantle illegal forms of access to Member States’ borders through organized networks. Another measure is the EU-Turkey Statement that, despite some legal doubts, intends, not only, but also, to create a legal path of access to international protection in the Member States.

The story dates back to October 2016, when a Syrian family (mother, father – married to one another – and their three young children, from Aleppo) applied for a humanitarian visa at the embassy of Belgium in Lebanon. They hoped, with this, to legally enter in Belgium and to request asylum. They claimed that one of them had been abducted by an armed group, beaten and tortured, before being released on payment of a ransom. They emphasized, specially, the deterioration of the security situation in Syria, in general, and in Aleppo, in particular, as well as the fact that, as Orthodox Christians, they were at risk of persecution because of their religious beliefs. This family added that they could not register as refugees in neighboring countries, particularly in view of the fact that the Lebanese-Syrian border had been closed in the meantime.

The competent Belgian authorities promptly rejected the request, explaining that (i) the applicants planned to remain in Belgium for more than 90 days, and under the Visas Code, in accordance with Article 1, the issue of transit visas or visas within the territory of the Member States shall not exceed 90 days in a period of 180 days; (iii) in addition, Article 3 of the ECHR, according to which «no one shall be subjected to torture or inhuman or degrading treatment or punishment», shall not require States Parties to admit «persons living a catastrophic situation» and, lastly, they considered that (iii) Belgian diplomatic posts are not part of the authorities to which a foreigner may apply for asylum. For the reason that, authorizing an entry visa to the applicants in the main proceedings, for the purpose of submitting an application for asylum in Belgium, would be equivalent to allowing them to request this application for asylum in the diplomatic post.

The family appealed against the decision before the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium), which decided to refer to the Court of Justice questions relating to the granting of humanitarian visas. That is, «must Article 25(1)(a) of the Visa Code be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter or another international obligation by which it is bound is established?», «Does the existence of links between the applicant and the Member State to which the visa application was made (for example, family connections) affect the answer to that question?».
Continue reading “Humanitarian Visas and the X and X v. Belgium judgment (Case C-638/16 PPU)” →

Editorial of April 2017

On By officialblogunioIn EditorialsLeave a comment

32184158904_a465f8431b_o

by Alessandra Silveira, Editor
▪

What future do we want for ourselves, for our children and for our Union? (as for the 60 years landmark of the Treaty of Rome: please open the fridge!)

Two weeks ago I went to Rome at the European’s Commission invitation for the celebrations of the 60 years of the constitutive treaties of the current European Union. The Commission had decided to gather a group of Jean Monnet chairs from 34 nationalities for a seminar with the title “The future of Europe: a commitment for You(th)” and for a meeting with the EC Vice President, Federica Mogherini, and the (rotating) President of the Council of the EU, Joseph Muscat (Prime-Minister of Malta). It is my duty to share on this blog what I have heard there.

The EC is moving forward with a series of proposals about the management of globalisation and the future of the European finances, but also tending to develop the European social dimension. And, mostly, proposals tending to conclude the Economic and Monetary Union – that takes monetary and exchange sovereignty from the Member States whilst keeps their financial and fiscal sovereignty, what provokes clear imbalances between the more and the less robust economies of the euro zone. Moreover, the Commission presented on 1 March 2017 a White Paper on the future of Europe[i]  – which prospects the changes we will be subject to over the course of the next 10 years and presents 5 scenarios to face the challenges.

After a large debate – that will take place at the European level in the next months and in which the European Parliament, national parliaments, local and regional authorities and the society in general will participate – President Jean-Claude Juncker will address his considerations on the occasion of the speech of the State of the Union, in September 2017, hence contributing with the European Council for reaching its first conclusions by the end of the year and deciding about the actions to take over the period that precedes the European Parliament’s elections, in June 2019.

Naturally, the outcome will also depend on the electoral results in France and Germany – it couldn’t be any different. Not exactly for the narrative of the “French-German axis”, but because 40% of everything that is built with European funds is money from the French or the German tax payer. Is it not of the most elementary coherence that who pays the most should have a word? Anyhow, the European citizens from the other Member States may not be unrelated to the definition of their future – that’s why they need to know the proposals and pressure political decision-makers towards better choices. The European Union is not made by aliens – it’s our representatives who are there: in the Parliament, in the Council, in the Commission.

Continue reading “Editorial of April 2017” →