Summaries of judgments: Fridman and Others v Council and T-644/22 | Timchenko and Timchenko v Council

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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)

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Judgment of the General Court (Eighth Chamber, Extended Composition) 17 July 2024, Cases T-635/22 | Fridman and Others v Council and T-644/22 | Timchenko and Timchenko v Council

Common foreign and security policy – Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds – Obligation to report funds or economic resources belonging to or owned, held or controlled by the applicants – Obligation to cooperate with the competent national authority – Participation in activities the object or effect of which is to circumvent restrictive measures – Article 9(2) and (3) of Regulation (EU) No 269/2014.

Facts

In view of the increasing complexity of sanction evasion schemes, on 21 July 2022 the Council adopted a regulation laying down obligations to report funds and to cooperate with the competent authorities. Failure to comply with those obligations is treated as a circumvention of fund-freezing measures. In practical terms, the aim is to prevent use being made of complex legal and financial arrangements capable of making it, if not easier to circumvent measures, then at least more difficult for the competent national authorities to identify the funds or economic resources subject to restrictive measures.

The parties concerned brought actions before the General Court of the European Union seeking the annulment of those obligations to declare their funds or economic resources before 1 September 2022 and to cooperate with the competent national authorities. They submit that, since those obligations are not laid down in a decision taken by the Council in the field of the common foreign and security policy (CFSP), they cannot be regarded as measures necessary for the implementation of such a decision. In particular, they argue that the Council regulation amounts to a misuse of powers, since the adoption of the obligations in question should fall within the implementing powers of the Member States.

The General Court dismisses the actions in their entirety.

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On rebalancing powers in the digital ecosystem in recent CJEU case law (or on the battle between David and Goliath)

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Alessandra Silveira  (Editor of this official blog, Academic Coordinator of Jean Monnet Centre of Excellence “Digital Citizenship & Technological Sustainability” - CitDig, Erasmus+)
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There is no doubt that European Union (EU) law is committed to a certain rebalancing of powers in the digital ecosystem. And why is that? Because today there is a clear imbalance of power in favour of digital service providers, which requires a strengthening of the position of users in their relationship with providers. The Internet has become a space made up of platforms, where unilaterally established and non-transparent business models are developed. This attempt to rebalance power in the digital ecosystem is an exercise in social justice that only the EU can foster. And this trend is particularly noticeable in the field of personal data protection.

The emergence of a business model based on data – and profiling based on inferred data – reveals the imbalance of power between users and platforms. This has led some authors to recognise the quasi-public powers exercised by technology companies on the Internet: they regulate, enforce and resolve conflicts of interest, acting in an uncontrolled way that we would not even allow public authorities to do in the context of the rule of law. But the problem must be contextualised: what is personal data?

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Summaries of judgments: Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality) | Ilva and Others

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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 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality), Case C-646/21, EU:C:2024:487

Reference for a preliminary ruling – Area of freedom, security and justice – Common asylum policy – Directive 2011/95/EU – Qualification for refugee status – Article 2(d) and (e) – Reasons for persecution – Article 10(1)(d) and (2) – ‘Membership of a particular social group’ – Article 4 – Individual assessment of the facts and circumstances – Directive 2013/32/EU – Article 10(3) – Requirements for the examination of applications for international protection – Article 24(2) of the Charter of Fundamental Rights of the European Union – Best interests of the child – Determination – Third-country nationals who are minors and who identify with the fundamental value of equality between women and men by reason of their stay in a Member State

Facts

Two sisters of Iraqi nationality, born in 2003 and 2005, respectively, have stayed continuously in the Netherlands since 2015. After their initial applications for international protection were rejected, by decisions that became final in 2018, they submitted subsequent applications in 2019. In support of those applications, they stated that, due to their long stay in the Netherlands, they have adopted the norms, values and conduct of young people of their age in that society. They claim that, if they return to Iraq, they would be unable to conform to the norms of a society which does not afford women and girls the same rights as men and fear being exposed to a risk of persecution due to the identity which they have formed in the Netherlands. They submit that they are therefore members of a ‘particular social group’, within the meaning of Article 10(1)(d) of Directive 2011/95.

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Editorial of October 2024

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By the Alessandra Silveira (Editor)
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On peace and sustainability

Between 27 and 29 September 2024, the University of Minho hosted “Greenfest” – the largest sustainability event held in Portugal and one that has been running for 17 years.[1] I had the honour of speaking on the panel dedicated to “Peace” – which addressed issues related to the promotion of peaceful, just and inclusive societies – essential for sustainable development and social cohesion. 

In legal sciences, sustainability is understood as a process through which we pursue a global society capable of perpetuating itself indefinitely over time in conditions that ensure human dignity. From this perspective, anything that contributes to this process would be sustainable, while anything that deviates from it would be unsustainable. [2] For this reason, constitutionalists such as Peter Häberle or Gomes Canotilho consider sustainability to be the structural principle of a new secular paradigm – along the lines of those that followed in the development of modern constitutionalism: humanism in the 19th century, sociality in the 20th century, sustainability in the 21st century.

In any case, talking about peace at a “Greenfest” necessarily brings us back to Kant and what he described as “Perpetual Peace” – a philosophical proposal on how peace can be achieved – especially as 2024 marks the 300th anniversary of the philosopher’s birth.  Kant’s question was not whether perpetual peace would be feasible or utopian, but to devise the means to achieve this end. In other words, to adopt stable institutions that make it possible to avoid war – and thus achieve a peace that represents more than the absence of war.

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Law and politics: the Puigdemont case and the dialogue between courts

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Teresa Freixes (President of Citizens pro Europe and Jean Monnet Professor ad personam)
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In recent weeks, the Court of Justice of the European Union (CJEU) has handed down judgments that shatter the assertion, so dear to some, that law cannot constrain policy. I am referring, essentially, to those that have considered the EU’s agricultural and fisheries agreement with Morocco to be contrary to EU law because it does not respect the will of the Sahrawi people, guaranteed by international law (Judgment in Joined Cases C-778/21 P and C-798/21 P and in Joined Cases C-779/21 P and C-799/21 P); also, the EU must grant political asylum to Afghan women who request it because they objectively meet all the legally established requirements for it to be granted, given the systematic violation of rights to which they are subjected in their country (Judgment in Joined Cases C‑608/22 and C‑609/22); and, of course, that which rejects the appeal of Mr. Puigdemont and Mr. Comín, confirming that they cannot be considered MEPs because they have not fulfilled the requirements established in national law to do so (Judgment C-600/22 P).

No matter how much political agreement there has been between the political bodies of the EU and Morocco, ignoring the fact that legally speaking Western Sahara is still a territory to be decolonised, regardless of the political decision that has been taken to abandon Afghan women asylum seekers to their fate, or the political will that some have had in pretending that one can be an MEP without complying with the electoral law of the Member State, the CJEU has guaranteed the rule of law and the application of the competent rules in the disputes that are the subject of its rulings. This is an example to be followed by the high courts, both supreme and constitutional, in all EU Member States and, particularly, as far as Spain is concerned.

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New open access publication available – The Charter of Fundamental Rights of the European Union: A Commentary

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By the Editorial Team
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We are pleased to announce the release of the English version of the Commentary on the Charter of Fundamental Rights of the European Union, coordinated by Alessandra Silveira, Larissa Araújo Coelho, Maria Inês Costa and Tiago Sérgio Cabral. This work is an important addition to our continuous work (within the JusGov research centre) to build a body of publications that contribute to the advancement of legal knowledge on fundamental rights in the context of the European Union and is an extensive update of the Portuguese version published in 2013.

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Are the Portuguese antitrust sanctions sufficient to guarantee the proper functioning of the internal market?

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Isabel de Paiva (master’s student in European Union Law at the School of Law of the University of Minho)
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Competition and free economic initiative structure the regulation of markets. In a legal order that follows and preserves economic freedom – that is, in a market economy, or more precisely, in a ‘social market economy’ such as the European one – competition and free economic initiative end up boosting economic development and growth. The promotion of free enterprise is largely underpinned by the existence of competition (and vice versa). Competition promotes innovation, better allocation of resources between economic agents and, to that extent, better satisfaction of consumer interests.

In any case, and regardless of the economic function and virtues of competition, there is also a sense of economic justice: competitive conditions must naturally be equal for all, and must not be distorted to the advantage of a few and to the detriment of the collective interest – which consists of the best possible allocation of available resources. This leads us to consider the importance of competition and guaranteeing its effectiveness from a perspective that goes beyond its strictly economic virtues: it begins as an imperative of economic justice and therefore has an ethical and normative aspect. A free market is necessarily a market with as high a level of competition as possible.

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Summaries of judgments: Medel v Council | Symphony Environmental Technologies and Symphony Environmental v Parliament and Others

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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)
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Order of the General Court (Grand Chamber), 4 June 2024, Cases T-530/22 to T-533/22, Magistrats européens pour la démocratie et les libertés (Medel), International Association of Judges, Association of European Administrative Judges e Stichting Rechters voor Rechters v Council of the European Union, Actions for annulment – Regulation (EU) 2021/241 of the European Parliament and of the Council – Council Implementing Decision of 17 June 2022 on the approval of the assessment of the recovery and resilience plan for Poland – Lack of direct concern – Inadmissibility)

Facts

The General Court, sitting in Grand Chamber, dismissed as inadmissible the actions brought by four international judges associations[1], whose members consist, in general, of national professional associations, including those of Polish judges, seeking the annulment of the Council’ implementing decision that approved the assessment of Poland’s recovery and resilience plan.

The Recovery and Resilience Facility, established by Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021, allows the European Union (“EU”) to grant funds to Member States, in the form of a financial contribution.

On 17 June 2022, the Council adopted a decision, subsequently amended by a decision on 8 December 2023, (hereinafter the “contested decision”), approving the assessment of the Recovery and Resilience Plan proposed by Poland – which specifies, the milestones that Poland must achieve for the financial contribution to be granted. These milestones include, in particular, the reform of Poland’s judicial system, detailed in milestones F1G, F2G, and F3G. In accordance with milestone F1G, legislative measures must be adopted to strengthen the independence and impartiality of the judiciary. Furthermore, milestone F2G requires measures to ensure that the judges affected by decisions of the Disciplinary Chamber of the Polish Supreme Court have access to proceedings allowing a review of the decisions of that Chamber. Lastly, milestone F3G enshrines that any proceedings initiated under milestone F2G must be concluded during the fourth quarter of 2023.

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Holiday break

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By the Editorial Board
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Dear readers,

We will be taking a short break for summer holidays. We will resume our regular publishing schedule in early September 2024.

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, comments, essays, reviews, 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: Photo by VH S on Pexels.com

Romania: A declaration of war from the High Court of Cassation and Justice against the Court of Justice of the European Union

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Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
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The judgments of the Court of Justice of the European Union regarding the rule of law and the serious fraud against the financial interests of the European Union appear to have been optional for the Romanian courts, and a new interpretative decision of the High Court of Cassation and Justice – Panel for the Clarification of Certain Points of Law in Criminal Matters, Decision No 37/2024, binding erga omnes, is the last proof of this fact.

For qualified researchers, the case of the Constitutional Court of Romania is well known. By Decision No 390/2021, the Constitutional Court of Romania created a ‘brick wall’ between the national courts and the CJEU, in order to maintain the applicability of national legislation contrary to the judgment of the CJEU in 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 and Others, by requiring national ordinary judges not to analyse the conformity of a national provision, already found to be constitutional by a decision of the Constitutional Court, in the light of provisions of European Union law.

Continue reading “Romania: A declaration of war from the High Court of Cassation and Justice against the Court of Justice of the European Union” →