7 years of the “Portuguese Judges” judgment – understanding where we come from so we know where we are going

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Free Close-up of a wooden judge's gavel on a black desk, symbolizing justice and law. Stock Photo
Juan Gálvez Galisteo (PhD student at the University of Seville, undertaking a research stay at the University of Minho)

I.

27 February 2018. This is the date on which the Court of Justice of the European Union (CJEU) handed down its landmark judgment in the “Portuguese Judges” case [Associação Sindical dos Juízes Portugueses v. Tribunal de Contas (ASJP)].[1] Seven years have passed since that crucial judgment in the ongoing process of European integration. Was its importance foreseeable at the time? Could anyone have predicted that it would have such a profound impact on democratic coexistence within the European Union (EU)? What consequences did this judgment have? Does it still have an impact in the current European context? What considerations should be weighed up for the future?

This text aims to analyse these issues, albeit briefly, in order to contribute to and encourage the academic debate on the constitutionalisation of the European Union and the defence of its values, as set out in Article 2 of the Treaty on European Union (TEU), with special attention, for obvious reasons, to the rule of law.

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Summaries of judgments: TP v Commission | Bindl v Commission

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Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

Judgment of the General Court (Third Chamber, Extended Composition) 18 December 2024,

Case T-776/22 TP v Commission

Public procurement – Financial Regulation – Exclusion from the proceedings of awarding of public contracts and the concession of grants financed by the Union’s budget and by the European Development Fund (EDF) for a period of two years – Significant deficiencies in complying with main obligations in the implementation of a prior contract – Article 136 (1)(e) of the Financial Regulation – No automatic link between a finding of a failure to comply with contractual obligations by the court having jurisdiction over the contract and the adoption of an exclusion measure by the authorising officer responsible – Obligation to conduct a specific and individual assessment of the conduct of the person concerned – Prior contract awarded to a group of economic operators – Joint and several contractual liability

Facts

The General Court (henceforth “GC”), ruling in extended composition, ruled, for the first time, on the question of whether article 136(1)(e) of Regulation 2018/1046[1] (henceforth “Regulation”) imposes on the authorising officer responsible, in order to apply contractual sanctions, the obligation to conduct a specific and individual assessment of the behaviour of the person concerned before deciding to exclude from participating in award procedures.

The European Commission (henceforth “Commission”) organized a procurement procedure for the award of a public works contract concerning the upgrading of a facility. The contract was awarded in 5 October 2009 to the consortium composed by the company TP, the applicant, and its partner company. The works began in November 2009 and were concluded two years later.

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Editorial of March 2025

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Alessandra Silveira [Editor of this blog, Coordinator of Jean Monnet Centre of Excellence “Digital Citizenship and Technological Sustainability” (CitDig), UMinho]

The new world (dis)order and the European Defence Union

(on three years since the invasion of Ukraine)

On 24 February 2022, while the planet was still rising from the depths of the pandemic, barbarity returned to the European continent – all recorded by drones and satellites in a conventional war perpetrated amid the digital age. The return of war to the European continent urges us to re-read Hannah Arendt, because totalitarian solutions are still tantalisingly tempting. [1] Arendt explains that nowhere else does Fortune – good or bad – play such a decisive role in human affairs as on the battlefield. That is why violence in war carries with it an additional element of arbitrariness.[2]

In “The Origins of Totalitarianism” from 1951, Arendt traces the subterranean elements that crystallised the astonishing singularity of the totalitarianisms of the 20th century – and their systematic attempt to make human beings superfluous. The same perplexity that arises before the terrifying images of Bucha or Mariupol – but where does this horror come from? – led Arendt to coin the expression “the banality of evil”. With this concept, she wanted to explain that someone does not have to be a monster to perpetrate an evil act – and that people can commit it for banal reasons, without ever having decided whether to be good or bad, but simply because of their inability to think, to put themselves in the place of the victims, to exercise a broad mentality or the Kantian universalisation test.[3]

Continue reading “Editorial of March 2025” →

Compensation for unlawful data transfers: The T-354/22 judgment (Bindl v. Commission) in perspective

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João Pedro Sousa (master’s student in European Union Law at the School of Law of the University of Minho)

1. Introduction

Protecting personal data is a cornerstone of the European Union (EU) legal framework, safeguarded by Article 8 of the Charter of Fundamental Rights of the European Union (CFREU) and Article 16 of the Treaty on the Functioning of the European Union (TFEU), especially since the entry into force of the General Data Protection Regulation (GDPR). This regulation aims to ensure citizens’ privacy and establish clear standards for using personal data by both public and private entities.[1] However, international data transfer became particularly prominent, specifically after the Schrems II case exposed vulnerabilities in transatlantic data protection relations and the consequent annulment of the Privacy Shield by the Court of Justice of the European Union (CJEU).[2]

The judgment in case T-354/22, of January 8, 2025, known as Bindl v. Commission, delivered by the General Court (GC),[3] represents a milestone in strengthening the guarantees provided by the GDPR. For the first time, the European Commission was ordered to pay compensation for moral damages resulting from infringing stringent data protection laws.[4] This case, initiated by an EU citizen, concerns the improper transfer of personal data of users of the Conference on the Future of Europe (CFE) website to the United States (US), in violation of the regulation.[5]

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AI in the context of border management, migration and asylum in the EU: technological innovation vs. fundamental rights of migrants in the AI ​​Act

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Maria Clara Pina (master’s student in Human Rights at the School of Law of the University of Minho)

I.

Currently, in the so-called era of techno-solutionism,[1] digital technologies, including Artificial Intelligence (AI), have become widely used.[2] We are witnessing the emerging but rapidly evolving phenomenon of border management and control through the use of new technologies[3] and automated individual decision-making (Article 22 of the General Data Protection Regulation, henceforth “GDPR”),[4] which employ AI, and promise faster and more efficient decisions. However, these systems have the potential to harm human rights. Migration is becoming a transaction that requires migrants to exchange biometric and biographical data for access to resources or a jurisdiction – and to be seen as people[5] with inherent rights and dignity.

At the same time, the number of migrants in the European Union (EU)[6] is growing, making it worthwhile to analyse the impact of these technologies and their regulation (or lack thereof), given their inevitable and rapid evolution, but, above all, the constant character of the migratory phenomenon over time, and the vulnerability inherent to the status of migrant. In this context, complex legal challenges arise, requiring the analysis of the EU regulatory framework on the use of AI in the context of border management, asylum and migration, considering the main gaps within the AI ​​Act[7] and its far-reaching implications on the human rights of migrants.

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The EU-Mercosur Free Trade Agreement – A “race to the bottom” when it comes to EU’s climate goals?

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Ana Cardoso (PhD candidate & Master's in European Union Law at the School of Law of University of Minho)

I.

The European Union (EU) is one of the most active actors in the field of environmental protection worldwide.[1] However, today some of the EU’s most important partners – namely the United States of America (USA) – have adopted highly protectionist positions[2] which aim to push forth economic growth without any consideration for its environmental consequences or international commitments.[3]

The issue has been so controversial, that Bloomberg Philanthropies has announced it will step in to cover the USA’s contribution to the United Nations Framework Convention on Climate Change (UNFCCC), given that the country had been responsible for funding around 21% of the organisation’s budget, and its withdrawal would mean a severe disruption to environmental protection actions all around the planet.[4]

Additionally, Russia’s acts of continued aggression against Ukraine have emphasised the EU’s energetic dependency on unreliable partners making the need to boost the EU’s own energy autonomy more apparent, which the Commission proposes to do through renewables, energy efficiency and other European Green Deal (EGD) policies.[5]

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Summaries of judgments: Real Madrid Club de Fútbol | KUBERA

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

Judgment of the Court (Grand Chamber) of 4 October 2024, Real Madrid Club de Fútbol, Case C-633/22, EU:C:2024:843

Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Articles 34 and 45 – Recognition and enforcement of judgments – Revocation of a declaration of enforceability of judgments – Grounds for refusal – Public policy in the State in which recognition is sought – Penalty imposed on a newspaper and one of its journalists for harm caused to the reputation of a sports club – Damages – Article 11 of the Charter of Fundamental Rights of the European Union – Freedom of the press.

Facts

In 2014, the newspaper Le Monde and one of its journalists were convicted in Spain for the publication in 2006 of an article claiming that the football club Real Madrid had retained the services of the head of a doping ring in the cycling world. The Spanish court ordered them to pay EUR 300 000 to Real Madrid and EUR 30 000 to a member of the medical team of that club, by way of compensation for non-material damage suffered.

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Editorial of January 2025

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By Alexandre Veronese (Professor of University of Brasília, CitDig key external member, UMinho) and Alessandra Silveira [Editor of this blog, Coordinator of Jean Monnet Centre of Excellence “Digital Citizenship and Technological Sustainability” (CitDig), UMinho]

The dilemmas of content moderation in the European Union and Latin America: a new chapter?

            It was already known that Elon Musk’s direct participation in the presidential campaign that led to a second term for Donald Trump would have consequences for Big Tech regulation policies. However, one did not imagine that it would happen so quickly. The recent policy change by Meta – the parent company to which Facebook, Instagram and WhatsApp belong – paves the way for other technology companies to seek ways to tacitly or explicitly “globalise” a broader interpretation of the concept of freedom of expression, according to the model of the United States of America.

            For Brazil – and other democracies in Latin America – that have had clashes with large digital platforms, the dilemma will increase. It is worth remembering what happened in Brazil. The social network X – former Twitter –, after its acquisition by Elon Musk, changed its content moderation policy. Thus, potentially offensive posts were released in certain countries. This process culminated in court orders from the Federal Supreme Court of Brazil to block posts and accounts. Invoking its terms of use of service, social network X refused to comply with such orders. That reaction caused the application to be blocked.[1] Subsequently, the social network X met the demands of that court – which acts as the Brazilian constitutional court – and the application was able to function again.[2]

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Commentary to the Bezirkshauptmannschaft Landeck judgment: a failure by the CJEU in appropriately balancing privacy, data protection and the interests of law enforcement [1]

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Tiago Sérgio Cabral [Editor of this blog and Project Expert for the Portuguese team in the "European Network on Digitalization and E-governance" (ENDE)]

1. Background

The Court of Justice’s decision in Case C- 548/21 (Bezirkshauptmannschaft Landeck) probably got less attention than it deserved from legal scholars due to being issued at the same time as other high profile data protection cases and connected to Directive 2016/680/EU (the “Law Enforcement Directive”) instead of the GDPR. However, there are good reasons to engage in a deeper analysis of this case. The Bezirkshauptmannschaft Landeck judgment addresses access by law enforcement to mobile phones, which nowadays store large amounts of personal data that most people prefer to maintain private, but that law enforcement considers key for criminal investigation purposes. The Court of Justice’s conclusions regarding this issue are surprising as they seem out of step with previous case-law. Other less controversial but still relevant takeaways from this judgment, such as those regarding the scope of the concept of “personal data” may have relevance beyond data protection in the context of law enforcement.

    2. The Court of Justice’s Decision

    The case arises from a request for a preliminary ruling from the Regional Administrative Court of Tyrol (Austria). The factual background of the judgment is relatively straightforward: Austrian customs authorities seized a package for a data subject (CG) containing 85 grams of cannabis. Pursuant to this seizure, law enforcement conducted a search of CG’s residence, questioned him, and requested access to connection data on CG’s mobile telephone. CG refused and, as such, law enforcement seized his mobile phone, including SIM and SD cards.

    Continue reading “Commentary to the Bezirkshauptmannschaft Landeck judgment: a failure by the CJEU in appropriately balancing privacy, data protection and the interests of law enforcement [1]” →

    New UNIO issue now online

    On By officialblogunioIn NewsLeave a comment 
    By the Editorial Team

    The Editorial Board is happy to announce that a new issue of the UNIO – EU Law Journal is now online. Issue 10(2) of UNIO includes contributions from a number of highly esteemed academics and young scholars and covers matters such as i) the EU’s conditionality regulation; ii) an analysis of the new far-right movements; iii) the digitalisation of criminal justice in the EU through eu-LISA cooperation with Eurojust and Europol; iv) the taxation of energy products in the EU for reasons of environmental policy; v) digital constitutionalism; vi) the use of technology for inter-jurisdictional cooperation in the inter-American context; and vi) the pivotal role of digital currencies.

    It is our hope that this new edition will be of relevance to our readers and would also like to remind you that we are accepting submissions at UNIO and also on our blog.

    You may find UNIO’s 10(2) issue here.