Rainbow families: pioneering ruling on legal recognition to same sex parentage across all EU Member States

By Kosha Doshi and Naga Sumalika Rangisetti (3rd year students at Symbiosis Law School - India)

1. Introduction

Europe in general and the European Union (EU) in particular, have seen a remarkable surge in the prevalence of countries that provide legal recognition to informally cohabiting (same-sex) partners, as well as the number of countries that allow same-sex couples to marry or at least enter into a form of registered partnership. However, even in some countries where same-sex marriage is accepted, same-sex parentage is questioned. Pride month is celebrated every year in June and, within this context, it is important to remember that the rights of bisexuals, trans and LGBTQI+ parents have not been treated on par as heterosexual parents’ families. This is a complex and delicate subject that touches on human rights, religion, morality, and tradition, as well as constitutional concepts like equality, autonomy, and human dignity.

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Can a judge’s request for a preliminary ruling be illegal and lead to disciplinary action? – The Court of Justice conclusions in case C-564/19

By Joana Gama Gomes (Master in International and European Law from the University of Coimbra / Researcher at CIDEEFF - Centro de Investigação em Direito Europeu, Económico, Financeiro e Fiscal)

The request for a preliminary ruling was submitted by a Hungarian court in criminal proceedings brought against a Swedish national, for infringement of the provisions of Hungarian law governing the acquisition or transport of firearms or ammunition. Although the facts of this case seem unrelated to the problem at hand, subsequent developments in Hungary during the course of this procedure raised a fundamental issue of EU law.

A declaration of illegality from the Hungarian Supreme Court and disciplinary proceeding against the referring judge led him to ask the Court two crucial questions – whether EU law precludes a national court of last instance from declaring as unlawful a decision by which a lower court makes a request for a preliminary ruling, and whether the principle of judicial independence precludes disciplinary proceedings being brought against a judge for having made such a request for a preliminary ruling.

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Editorial of April 2022

By Alessandra Silveira (Editor)

Rule of law and the direct effect of the second subparagraph of Article 19(1) TEU (on the case M. F., C-508/19)


Never since the beginning of European integration, was the mission of impartial and independent courts been as important as nowadays, taking into account the war currently being waged. Therefore, it is important to consider that “It is when the cannons roar that we especially need the laws…Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law”, as stated the Advocate General Poiares Maduro in his Opinion in the case Kadi, quoting Aharon Barak, the former President on the Supreme Court of Israel (C‑402/05 P, ECLI:EU:C:2008:11, recital 45).

Last week the CJUE added a piece to the puzzle of a Union based on the rule of law. And do it from the judicial independence in which the effective judicial protection of individuals’ rights under EU law is rooted. More precisely: on 22 March 2022, in the case M. F. (C-508/19, ECLI:EU:C:2022:201), the CJEU has claimed that the second subparagraph of Article 19(1) TEU (according to which “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”) must be regarded as having direct effect.

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Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)]. 
 

1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

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The national judge as judge of the Union (a view of the Judges’ Forum 2021 – CJEU)

Irene das Neves (Appeal Court Judge of the Northern Administrative Central Court - Tax Litigation Section), Dora Lucas Neto (Appeal Court Judge of the Southern Administrative Central Court - Administrative Litigation Section), and Isabel Silva (Judge of the Administrative and Fiscal Court of Braga - Tax Litigation)

The reference for a preliminary ruling, provided for in Article 19(3)(b) of the Treaty on European Union (TEU) and Article 267 of the Treaty on the Functioning of the European Union (TFEU), is a fundamental mechanism of EU law.[1] It is an “incident” within national proceedings that obliges the national judge to stay the proceedings because it is faced with the need to obtain a “preliminary” ruling from the Court of Justice of the European Union (CJEU) on the interpretation of EU law or the validity of the acts of its bodies, institutions or agencies, with a view to the proper administration of justice within the EU. To that extent, the national courts playing the role of guardians of EU law, ensuring the effective and homogenous application of the law, and seeking to avoid divergent interpretations by the various courts of the Member States.

It was on this theme of the reference, focused on the reference for the interpretation of EU law, that the President of the CJEU, Koen Lenaerts, opened the 2021 Judges’ Forum, which was held at the CJEU from 21 to 23 November and brought together judges from the courts of first instance and the appeal courts of the Member States, recalling that the reference for a preliminary ruling is an instrument of judicial cooperation by means of which the national judge and the EU judge are called upon, within the scope of their respective powers, to contribute to a decision ensuring the uniform application of EU law by the Member States.

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Venezuela as a third country before the ECJ

Tiago Paixão (Master’s in Administrative Law - The Author’s opinions are his own and do not bind any other person or entity)

The Bolivarian Republic of Venezuela (“Venezuela”) brought an action for annulment before the General Court to annul certain restrictive measures imposed by the Council of the European Union here. Those restrictive measures were imposed because of concerns about democracy, rule of law and human rights principles and are set out on Regulation 2017/2063, Regulation of Execution 2018/1653 and Decision 2018/1656.

Concretely, the General Court had to solve two major questions, before the substance of the annulment. On the one hand, to determine if Venezuela is a legal person for Article 263 TFUE and, in case of having given a positive answer, if Venezuela is directly affected by those measures.

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Review of Portuguese Association of European Law’s webinar on the rule of law protection in the European Union

by Alessandra Silveira and Joana Covelo de Abreu (Editors)

On 28 May 2021 a webinar was held at the School of Law of the University of Minho under the theme “Rule of law protection in the European Union”, organized by the initiative of the Portuguese Association of European Law (APDE). The event had the moderation of Carlos Botelho Moniz (APDE’s President) and the interventions of Alessandra Silveira (Editor), Joana Covelo de Abreu (Editor) and José Manuel Fernandes (Member of the European Parliament, EPP’s Coordinator of the Committee on Budgets and Recovery and Resilience Facility Mechanism’s negotiator). In order to keep a record for future memory, some ideas presented by the participants will be reproduced in this review.

Speakers reflected on how the European Union has been playing a relevant role on the rule of law protection and has been proclaiming itself as a “Union of law”. They started by analysing the concept of rule of law and its implications from the Treaties, the CFREU and the Court of Justice jurisprudence – mainly from Les Verts[1] and Associação Sindical dos Juízes Portugueses[2] judgments (the later also known as “Portuguese Judges”)[3]. They also focused legal procedures that act against violations of the rule of law enshrined on Article 7 TEU, and the infringement procedure steaming from Article 258 TFEU, envisaging the possibility of Member States to explore the procedural way opened by Article 259 TFEU, namely because the political tension escalade within the European Union. But the preliminary ruling procedure of Article 267 TFEU was also mentioned as continuing to play an important role to national judicial authorities when they are facing the need to comply with EU law. Lastly, speakers also devoted their attention on the Rule of Law Conditionality (Regulation 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget) and on the debate around its approval and implementation.

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The rule of law and the defense of citizens against any power: on the case C-650/18 Hungary v European Parliament

by Alessandra Silveira (Editor) and Maria Inês Costa (Master´s student in Human Rights at the University of Minho)

The expression rule of law means that the exercise of public power is subject to legal norms and procedures – legislative, executive, judicial procedures –, which allow citizens to monitor and eventually challenge the legitimacy of decisions taken by the public power. The basic idea of the value of the rule of law is to submit power to law, restraining the natural tendency of power to expand and operate in an arbitrary manner – be it the traditional power of the State, or the power of novel political structures such as the European Union, be it the power of private organizational complexes – such as market forces, internet forces, sports forces, etc.

The procedure provided by Article 7 TEU is the most emblematic political instrument to defend the rule of law in the European Union. Article 7(1) TEU constitutes the initial phase in the procedure in the event of a clear risk of a serious breach by a Member State of the common values enshrined in Article 2 TEU. Article 7(2) TEU governs the next stage in which a serious and persistent breach by a Member State of the values laid down in Article 2 TEU can be established. Article 7(3) TEU ultimately provides for the issuing of sanctions against the Member State concerned.

Article 7(1) TEU provides that on a reasoned proposal by the European Parliament, the Council acting by a majority of 4/5 of its members may determine that there is a clear risk of a serious breach by a Member State of the common values of the Union referred to in Article 2 TEU. Moreover, Article 7(5) TUE provides that the voting arrangements applicable to the European Parliament are laid down in Article 354 TFEU – which provides that the European Parliament shall act by a 2/3 majority of the votes cast, representing the majority of its component Members.

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