Europe and the train of the Digital Single Market

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by Isabel Espín, Professor at the Law School of Universidade de Santiago de Compostela
▪

The European Union must not miss the train of a true digital single market that will keep the momentum of its important digital content industry and make it more competitive without losing the essence of European cultural identity.

The Communication from the Commission on a strategy for the Single Digital Market in Europe of 6 May 2015 takes account of this and calls for a comprehensive legislative reform in order to combat fragmentation and barriers in the European digital market, a situation that has been affecting Europe’s leadership capacity in the global digital economy.

The basis for such regulatory initiatives are Article 4 (2) (a) and Articles 26, 27, 114 and 115 of the Treaty on the Functioning of the European Union. There are many topics involved in a comprehensive and integrated single market initiative: data protection, e-commerce, consumer protection, access (broadband and interoperability), competition law, taxation, etc.

From the point of view of copyright, the Commission’s communication on promoting a European economy founded on fair, efficient and competitive copyright in the digital single market, of 14 September 2016, is the instrument that point out the initiatives concerning the protection of copyright in the digital single market. Such initiatives are: the Proposal for a Regulation regulating copyright and related rights for online television broadcasts and rebroadcasts on online TV and radio programs; Proposal for a Regulation governing the exchange of accessible copies between the EU and third countries part of the Marrakesh Treaty; Proposal for a Directive to facilitate access to public works for blind and or visually impaired persons (Marrakech Treaty).

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Eurogroup and secrecy

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by Andreia Barbosa, PhD student at the Law School of UMinho
▪

It is clear from Article 1 of Protocol No 14, annexed to the Treaty on the Functioning of the European Union, that Eurogroup meetings take place informally.

Informality is reflected in two aspects. First, according to the terms in which the meetings are held, that is, as to the procedure adopted therein. In fact, there is no set of rules defining the procedure to be followed, for example, to ensure the involvement of all actors and to determine the order in which such interventions can be carried out and the duration they may have. Secondly, the terms in which «decisions» are taken and how they are made known to the public. It is through press conferences that the outcome of the meetings is presented to citizens of the Union (and when they are).

It should be noted that we refer to «decisions» as a result of Eurogroup meetings, even though we know that the formal, final, and binding decision on the subject is actually taken at the Ecofin meeting. However, we are also aware of the fact that the votes made at Ecofin express the outcome of the previous Eurogroup meeting. The final decision of Ecofin was born in the Eurogroup.

So, the informality resulting from Article 1 of Protocol No 14 actually means «opacity». Contrary to the idea of necessary transparency and publicity in all decision-making centers, no minutes or documents are signed in the Eurogroup, there are no transcripts or records relating to the respective meetings. No database has ever been set up to add up the «decisions» taken. The proposals under discussion, the presented votes, the conflicts of interest that have arisen and the commitments made are not known. Moreover, the acts of the Eurogroup can not be syndicated before the Court of Justice of the European Union, even though they are not documented, neither on paper nor in audio or video.

Although a certain procedural informality is admitted (but still susceptible of criticism), it does not seem to admit an opacity in the decisions. In abstract, a procedure can be informal and simultaneously transparent. In particular, the functioning of the Eurogroup may be informal, but its «decisions» should not be opaque. And the lack of transparency that exists goes beyond mere confidentiality.

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Unveiling the meaning of freedom of religion in the workplace – or, unveiling the Achbita and Bougnaoui judgments

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by Sophie Perez Fernandes, Junior Editor
▪

Our editorial of November 2016 related to two preliminary references proceedings at the time pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work and, particularly, the highly sensitive issue of the wearing of Islamic headscarves (and not the full veil) in the workplace. The issues raised in both cases required the interpretation of the concept of ‘discrimination on the grounds of religion or belief’ within the meaning of the Anti-Discrimination Directive – the Directive 2000/78[i]. Let us recall the fundamental questions at issue: is a private employer allowed to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace?; is the dismissal of an employee who refuses to comply with such rules restricting the wearing of religious symbols at work unlawful?

On 14 March 2016, the Grand Chamber delivered both the Achbita (C-157/15) and the Bougnaoui (C-188/15) judgments, two significant decisions in relation to discrimination in employment on grounds of religion. The facts at the origin of each case were slightly different.

In the first case, Ms Achbita started to work for G4S as a receptionist in 2003 and complied with the rule according to which workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace, an unwritten rule at the time. In 2006 Ms Achbita informed her employers that she intended, in future, to wear an Islamic headscarf at work and, in reply, was informed that such intention was contrary to G4S’s position of neutrality. Shortly afterwards, the above mentioned unwritten rule was written down: the workplace regulations thus stipulated that «employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs». Shortly after the amendment was approved, Ms Achbita was dismissed on account of her continuing insistence that she wished to wear the Islamic headscarf at work.

In the second case, Ms Bougnaoui was informed at a student recruitment fair by a representative of Micropole that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company. When Ms Bougnaoui began to work at Micropole in 2008 as an intern, she was initially wearing a bandana and subsequently an Islamic headscarf. Micropole nevertheless employed her at the end of her internship. Almost a year later, Ms Bougnaoui was dismissed. A customer of Micropole’s with whom Ms Bouganoui had worked informed her employers that her wearing the headscarf had upset some of their employees and requested that there should be «no veil next time». Despite the request of her employers, Ms Bouganoui refused to agree not to wear the headscarf in the future and was thus fired in 2009.

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Editorial of March 2017

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by Pedro Madeira Froufe, Editor
▪

The future (in White Paper) of Europe, according to Juncker

The European Commission has presented the White Paper on the Future of Europe precisely now in the year of the milestone celebration of 60 years of integration[i] and when it is taking place the technical and diplomatic operation of materialising Brexit.

It is always good and never inopportune to launch a debate on the future of integration, especially when the Union faces a political, economic and social turbulence and, at the external level, the geopolitical indetermination which makes this debate an existential issue. Incidentally, by promoting this debate, it is indispensible that it is rapidly consequent.

The White Paper was then presented at the European Parliament, on 1st March, by the President of the Commission who intended to propose options to strengthen the Union in the post-Brexit. Juncker wanted to highlight, by all means and with certainty before the context and the dark and hesitant note with which the integration and the EU have been marked, a sign/memory of hope: “Our darkest days are still far brighter than any spent by our forefathers imprisoned in Ventotene” [the Italian prison where Altiero Spinelli and Ernesto Rossi were kept during the II World War].

The intention of the Commission and its President is understandable (in fact, he has already announced he won’t be running for a second term). Indeed, this motivating intention of the newly presented White Paper was explicitly affirmed: as we face a Europe post-Brexit, the integration of 28-1 and with risks of not being able to stem possible propensities for new withdrawals, we must quickly define a new path. A definition that will mean necessarily a commitment of deepening the integration, among all. The question is precisely knowing/defining how to advance to this deepening. Furthermore: what does it mean, realistically and consequently today, such deepening? That is, which path to define to the future (nearly) immediate of the Union?

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European Union and Turkey: judicial independence at a crossroads

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by José Igreja Matos, President of the European Association of Judges
▪

“In the little world in which children have their existence”, says Pip in Charles Dickens’s Great Expectations, “there is nothing so finely perceived and finely felt, as injustice.” (…) But the strong perception of manifest injustice applies to adult human beings as well. What moves us, reasonably enough is not the realization that the world falls short of being completely just – which few of us expect – but that there are clearly remediable injustices around us which we want to eliminate.” – Amartya Sen, “The idea of Justice” (preface).

As V. Skouris [former President of the Court of Justice of the European Union (CJEU)] brilliantly explained in his speech at the conference Assises de la Justice (November 21, 2013), when analysing matters related to judicial independence, there is a traditional distinction between personal independence and substantive or functional independence. The former essentially refers to the personal qualities of the judge and is destined to ensure that in the discharge of his or her judicial function, a judge is subject to nothing but the law and the command of his or her conscience. The latter of this is the functional independence which refers also to the judicial institution as a whole; it means that the terms and conditions of judicial service are adequately secured by law so as to ensure that individual judges are not subject to any executive control. Judicial independence within the European Union legal order concerns not only the CJEU but also national courts at all levels, since national judges are also what we call in French “juges de l’Union du droit commun“.

Unfortunately, the situation in Turkey is characterized by an affront towards basic standards of judicial independence. Turkey was one of the first countries, in 1959, to seek close cooperation with the then very recent European Economic Community. This cooperation was realised in the framework of an “Association Agreement”, known as the Ankara Agreement, which was signed on September 12, 1963. The CJUE was already called to focus precisely on this Association Agreement for instance in relation to the issue of their limits (Judgement Dereci and others v Bundesministerium für Inneres, Case C-256/11, EU: C:2011:734). This associative status implies that European Union naturally concerns about matters involving Turkey, and what happens with the Turkish citizens concerns the EU citizens. However, the idea “a judge is subject to nothing but the law and the command of his or her conscience” – to use the language of V. Skouris – is today completely marginalized in Turkey as pointed out by different European entities. Some concrete examples can be provided in this regard:

I) In December 8, 2016 the European Network of Councils of Judiciary (ENCJ) decided, in General Assembly, to suspend, with no Council voting against, the observer status of the Turkish Judicial Council (HSYK). Thus the HSYK is now excluded from participation in ENCJ activities. The reasoning of the ENCJ was impressive: “it is a condition of membership, and for the status of observer, that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice. (…) taking into account the failure of the HSYK to satisfy the ENCJ that its standards have been complied with, the statements of the HSYK, as well as information from other sources including the reports and statements of the European Parliament, the European Commission, the Human Rights Commissioner of the Council of Europe and Human Rights Watch and the Venice Commission, the ENCJ decided that the actions and decisions of the HSYK, and therefore the HSYK as an institution cannot be seen to be in compliance with European Standards for Councils for the Judiciary. Therefore, the HSYK does not currently comply with the ENCJ Statutes and is no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice.” Security of tenure of office is a core element of the independence of a judge and the dismissal of judges should be used only in case of misuse of the exercise of office (e.g. UN Basic principles on the Independence of Judiciary, Opinion para 95, 92, 63, Rec para 49 and 50). However, HSYK adopted a decision with only 62 pages of reasoning sufficient to dismiss thousands of judges. The decision is totally inadequate when the criminal investigations used as motive to sack those judges are still in a pre-trial stage; the principle of the presumption of innocence, which is enshrined in Article 5 of the European Convention for Human Rights (ECHR), was consequently completely ignored, if not violated.

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The Almaraz debate – it’s not in Spain, it’s not in Portugal, it’s all around…

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by Sophie Perez Fernandes, Junior Editor
▪

The risk society is a non-knowledge society. Ulrich Beck has long demonstrated that the explosion of the nuclear reactor at Chernobyl (26 April 1986) coincided with an «explosion of non-knowledge» in an entanglement that requires a rethinking of the conceptual and institutional constants of the modern world, such as the concepts of rights and human dignity, as well as those of sovereignty and state government[i].

On January 16, the Portuguese government filed a complaint to the European Commission against Spain concerning the construction of a nuclear waste storage facility at the Almaraz nuclear power plant (the news can be found here). Operating since the early 1980s, the Almaraz nuclear power plant is located along the Tagus River about 100 kilometres from Portugal, bordering the districts of Castelo Branco and Portalegre. The construction of the storage facility is intended to extend the operation of the Almaraz nuclear power plant, which has been presenting several problems, especially security problems. Portugal claims that there has been a violation of the EIA Directive, in addition to requesting the suspension of the construction of the Almaraz nuclear waste storage facility.

The EIA Directive – Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 – applies to the assessment of environmental effects of certain public and private projects which are likely to have significant effects on the environment. It updates 4 earlier directives (Directives 85/337/EEC, 97/11/EC, 2003/35/EC and 2009/31/EC) and applies from 17 February 2012. Furthermore, Directive 2011/92 has been amended in 2014 by the Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014. The revised EIA Directive entered into force on 15 May 2014 and Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with it by 16 May 2017. It should also be mentioned that safety of nuclear installations is also regulated by EU law, namely by the Council Directive 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations (transposition deadline expired since 22 July 2011), amended by the Council Directive 2014/87/Euratom of 8 July 2014 (transposition deadline expires the 15 August 2017).

As stated above, Portugal claims that there has been a violation of the EIA Directive. The EIA procedure laid down in this directive can be summarized as follows: i) the developer (the applicant for authorisation for a private or public project which falls within the scope of application of the EIA Directive) may request the competent authority to say what should be covered by the EIA information to be provided (scoping stage); ii) the developer must provide information on the environmental impact (EIA report); iii) the environmental authorities and the public (and, as will be explained below, the eventually affected Member States) must be informed and consulted; iv) the competent authority decides, taken into consideration the results of consultations. The public is then informed of the decision taken and can challenge it before the courts.

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Lost in the Nacional Parliament’s Hallways: The Directive 2005/36/EC and the difficult path until its proper application in Portugal

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by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho
▪

The precedence of EU law over the law of the Member States is one of the fundamental principles of the Union. The Member States must comply with the European dispositions and shall not issue legislation contradicting EU law. To do so would be a breach of the principle of loyalty (art. 4(3) TEU). However, the states do not always legislate with the proper rigour and responsibility and when this occurs the principle of direct effect is key to assure a uniform application of the European Law and the protection of the European citizens.  In this short essay we shall study how the Portuguese legislator after correctly implementing the Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (through the Law n. 9/2009, of 4th March) proceeded to change the Portuguese legal framework (through the Law n. 31/2009, of 3rd July[i]) putting our law in direct contradiction with the Directive and how the solution, still in force, came in the form of the direct application of the Directive’s provisions.

Introduction – The Legal Framework

The Directive establishes the rules  “according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (…) shall recognise professional qualifications obtained in one or more other Member States (referred to hereinafter as the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession”.

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Editorial of February 2017

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by Alessandra Silveira, Editor
 ▪

On the Southern EU countries summit – challenges of democracy in times of austerity and dismay

Last Saturday, 28 January 2017, seven Member States from the south of Europe (Cyprus, France, Greece, Italy, Malta, Portugal and Spain) gathered in Lisbon to send the message of their national public opinions to the public opinions of the other Member States of the Union: surely the EU has to fight terrorism and to adopt a cohesive migration policy but such issues cannot bypass the attention towards the economic problem. It is a clamour of the Southern Europe in the regard that economic convergence becomes priority in the EU’s strategy through policies that create financial capacity in the euro zone and the development of European programmes to support investment. In the horizon, there would be solutions which involve a larger risk sharing – as the adoption of common taxes, an European system of bank deposit guarantee, common debt issue (eurobonds) as well as policies of positive discrimination in favour of indebted Member States that fulfil the adjustment rules.

The message of the citizens from the south of Europe holds that they advanced in the structural reforms and budgetary consolidation as much as it was possible (and the results in Spain and Portugal, mostly, are clear). But under the current circumstances of strong indebtedness and high unemployment it’s impossible to carry on without some relief from the financing constraints. Otherwise the Mediterranean societies will be driven to a situation of social rupture with unpredictable consequences, considering the populisms that lurk around. All that is inserted in a broader debate that the European institutions are facing on how to produce more jobs and better economic performance so that the European citizens can again see the European integration as an asset in their lives. It wasn’t for a different reason that in the first session of January the European Parliament approved a report on the Social Pillar (here). In the same regard, in March the European Commission will submit proposals aiming at reinforcing the social rights – that is, the access to minimum wage and minimum insertion allowances, access to a compulsory health insurance, extinction of unpaid internships, etc. In a year in which there are elections in several Member States, the strengthening of social protection means a European strategy to hinder the adhesion to populist movements.

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Brexit, The Supreme Court (UK) and the principle of loyalty: on the question of irrevocability of a withdrawal notice

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by Alessandra Silveira, Editor
▪

Article 50, TEU is silent on several issues concerning the withdrawal of a Member State from the European Union. Such article establishes that the Member State shall notify the European Council of its withdrawal intention in accordance with its own constitutional requirements. But it does not provide for, for instance, about the hypothesis of revoking the notification of the withdrawal intention, perhaps – before the certainty of revocability – to prevent the Member States of being tempted to influence the destiny of the EU through a false threat of exit. Therefore the doubts raised by article 50, TEU will have to be solved in the light of the principles of the EU law, in special the principle of loyalty [Article 4(3), TEU]. According to this principle of friendly conduct, inherent to all known federative systems, the EU and the Member States respect and assist each other mutually in the fulfilment of the missions resulting from the Treaties.

In 24 January 2017, The Supreme Court issued its expected ruling on whether a notice withdrawing the UK from the EU Treaties can, under the UK’s constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament.[i] Probably to justify the absence of a reference for a preliminary ruling on the question of irrevocability of a withdrawal notice pursuant to Article 50 TEU, The Supreme Court  highlights that UK’s constitutional requirements are a matter of domestic law should be determined by UK judges. Moreover, The Supreme Court asserted that the issues in those appeals have nothing to do with political issues such as the merits of the decision to withdraw, the timetable and terms of so doing, or the details of any future relationship between the UK and the EU.

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Implications of the declaration of invalidity of the Directive 2006/24 on the retention of personal data (metadata) in the EU Member States: an approach to the judgment Tele 2 of 21 December 2016

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by Alessandra Silveira, Editor
and Pedro Freitas, Member of CEDU
▪

In the decision Digital Rights Ireland of 2014[i], the ECJ was called upon to assess the validity of the Directive 2006/24 (on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks) in the light of Articles 7 (Respect for private and family life) and 8 (Protection of personal data) of the Charter of Fundamental Rights of the European Union (CFREU) and considered that the obligation imposed by the Directive 2006/24 on providers of electronic communications services constituted an interference with the aforementioned fundamental rights. [ii]

The issue at hand is that the directive concerned all those who used electronic communications services in Europe – even those whose conduct were not in any way linked with criminal activities.  Furthermore, while seeking to fight against serious crime, the Directive did not provide for any differentiation, limitation or exception to the retention of data of persons whose communications are subject to professional secrecy. In addition to a general absence of limits, the Directive 2006/24 did not lay down any objective criterion to limit the access of the competent national authorities to the data and its subsequent use. Furthermore, the Directive did not require that the data in question should be kept within the territory of the Union, and thus a supervision by an independent body was not fully guaranteed.

While it is true that the fight against serious crime is of prime importance in ensuring public safety and that its effectiveness may depend on the use of modern investigative techniques, such objective, be that as it may, cannot in itself justify a retention measure such as the one established by Directive 2006/24 as necessary for those purposes[iii]. By adopting Directive 2006/24, the European Union legislature had exceeded the limits imposed by the principle of proportionality in the light of Articles 7, 8 and 52(1) of the CFREU, and for that reason the ECJ ruled the invalidity of the directive, without reservations as to the temporal effects of its decision (ex tunc).

However, following the judgment in the Digital Rights Ireland case, the reaction of the Member States was not consensual, which led to an unlawful differentiation of treatment between European citizens. The decision of the ECJ raised the problem of the effects of that invalidity in relation to the national provisions transposing the directive. According to data released by the Portuguese Public Prosecutor’s Office, ten of the EU Member States have declared invalid the national laws that transposed the data retention directive, either by parliamentary decision or through their constitutional courts. In other Member States, including Portugal, this was not the case because the substantial requirements of the ECJ’s decision were deemed satisfied by the national legislation that transposed it. [iv]

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