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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The Court of Justice of the European Union is facing a new challenge: compliance with the rule of law or not as a result of the effects of decisions delivered by the Constitutional Court of Romania

Dragoș Călin (Judge at the Bucharest Court of Appeal and co-president of the Romanian Judges' Forum Association)

1. Some decisions of the Constitutional Court of Romania and the requests for preliminary ruling filed by the courts in Romania

In Romania, the decisions of the Constitutional Court (CCR) have been the subject of endless public discussion in recent years.

Most recently, due to the fact that, according to a press release issued at the beginning of June by the National Anticorruption Directorate, the public opinion found out that, in a number of 801 criminal files regarding the offence of abuse of office, the solution of discontinuance of proceedings was ordered, as an effect of CCR Decision no. 405/2016, according to which, when establishing that the offence of abuse of office was committed, the judicial bodies must take into account only the infringement of the normative prescriptions of the law, and not also the infringement of certain obligations provided by Government decisions or other infra-legal rules. The value of the damage established during the criminal investigation, which has remained unrecovered, according to the Romanian prosecutors, amounts to RON 1,380,564,195, EUR 118,467,830 and USD 25,636,611.

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Summaries of judgments: Privacy International | La Quadrature du Net and Others | R.N.N.S. and K.A. v Minister van Buitenlandse Zaken

Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
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Judgments of the Court (Grand Chamber) of 6 October 2020 Privacy International (C‑623/17, EU:C:2020:790) and La Quadrature du Net and Others (C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791)

Reference for a preliminary ruling – Processing of personal data in the electronic communications sector – Providers of electronic communications services – Hosting service providers and Internet access providers – General and indiscriminate retention of traffic and location data – Automated analysis of data – Real-time access to data – Safeguarding national security and combating terrorism – Combating crime – Directive 2002/58/EC – Scope – Article 1(3) and Article 3 – Confidentiality of electronic communications – Protection – Article 5 and Article 15(1) – Directive 2000/31/EC – Scope – Charter of Fundamental Rights of the European Union – Articles 4, 6, 7, 8 and 11 and Article 52(1) – Article 4(2) TEU

Facts

Following its judgments of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, of 21 December 2016, Tele2 Sverige and Watson and Others (C‑203/15 and C‑698/15, EU:C:2016:970), and of 2 October 2018, Ministerio Fiscal (C‑207/16, EU:C:2018:788), the ECJ ruled on four requests for a preliminary ruling from jurisdictions in three Member States in proceedings concerning the lawfulness of legislation adopted by those Member States in the field of processing of personal data in the electronic communications sector, laying down in particular an obligation for providers of electronic communications services to retain traffic and location data for the purposes of protecting national security and combating crime.

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Summaries of judgments: Casino, Guichard-Perrachon and AMC v. Commission |Intermarché Casino Achats v. Commission | Les Mousquetaires and ITM Entreprises v. Commission

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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Judgments from General Court (Ninth Chamber Extended Composition) of 5th October 2020: T – 249/17, Casino, Guichard-Perrachon et Achats Merchandises Casino SAS (AMC)/Comission, T- 254/17, Intermarche Casino Achats/Comission e T- 255/17, Les Mousquetaires e ITM Entreprises/Comission

Competition – Administrative Procedure – Decision ordering an inspection– Illegality of Article 20 of Regulation (CE) n.º 1/2003 – Right to an effective remedy – Principle of equality of arms – Obligation to state reasons for the inspection decisions – Right to inviolability of the home – Sufficient strong evidence – Proportionality – Refusal to protect the confidentiality of data relating to private life

Facts

After receiving information about the existence of change of information between several undertakings and associations of undertakings from the food and non-food distribution sector the Commission in the scope of the powers conferred by Article 20, paragraphs 1 and 4 of Regulation (CE) no 1/2003 adopted, in February 2017, several decisions requesting inspections to several undertakings.

Within the scope of those inspections, Commission visited the undertakings offices and obtained copies of the IT records.

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Summaries of judgments: Presidenza del Consiglio dei Ministri v BV | Cali Apartments

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 16 July 2020, Presidenza del Consiglio dei Ministri v BV, Case C-129/19, EU:C:2020:566

Reference for a preliminary ruling – Directive 2004/80/EC – Article 12(2) – National schemes on compensation to victims of violent intentional crime guaranteeing fair and appropriate compensation – Scope – Victim residing in the Member State in which the violent intentional crime was committed – Obligation for the national compensation scheme to cover that victim – Concept of “fair and appropriate compensation” – Liability of Member States in the event of a breach of EU law

Facts

This request for a preliminary was made in proceedings between the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers, Italy) and BV concerning the claim of non-contractual liability brought by BV against the Italian Republic for loss alleged to have been caused to BV owing to the failure to transpose Council Directive 2004/80/EC, of 29 April 2004, relating to compensation to crime victims (OJ 2004, L 261, p. 15) into Italian law.

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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
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Judgment of the Court (Fourth Chamber) of 11 June 2020, LE v Transportes Aéreos Portugueses SA, Case C-74/19, EU:C:2020:460

Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Article 7(1) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Exemption — Concept of ‘extraordinary circumstances’ — Unruly passengers — Possibility of relying on the occurrence of an extraordinary circumstance in respect of a flight not affected by that circumstance — Concept of ‘reasonable measures’

Facts

The dispute in the main proceedings is between a passenger and the air carrier Transportes Aéreos Portugueses (TAP) concerning its refusal to compensate that passenger whose connecting flight was subject to a long delay in arrival at its final destination. The passenger in question had made a reservation with TAP for a flight from Fortaleza (Brazil) to Oslo (Norway) with a stopover in Lisbon (Portugal).  The flight was operated on 21 and 22 August 2017 with a delay in arrival in Oslo of almost 24 hours. The delay was due to the fact that the passenger in question was unable to board the second leg of the connecting flight from Lisbon to Oslo because of a delay in the arrival of the first flight from Fortaleza to Lisbon. This delay was due to the fact that the aircraft which operated that flight, on its previous flight from Lisbon to Fortaleza, had had to be diverted to Las Palmas de Gran Canaria (Spain) in order to disembark an unruly passenger who had bitten a passenger and assaulted other passengers and members of the cabin crew. The passenger in question was therefore flown to Oslo on the next flight operated by TAP the following day.
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Grand Chamber) of 23 April 2020,Associazione Avvocatura per i diritti LGBTI, Case C-507/18, EU:C:2020:289

Reference for a preliminary ruling – Equal treatment in employment and occupation –Directive 2000/78/EC – Article 3(1)(a), Article 8(1) and Article 9(2) – Prohibition of discrimination based on sexual orientation – Conditions for access to employment or to occupation – Concept – Public statements ruling out recruitment of homosexual persons – Article 11(1), Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union – Defence of rights – Sanctions – Legal entity representing a collective interest – Standing to bring proceedings without acting in the name of a specific complainant or in the absence of an injured party – Right to damages

Facts

In the case, a lawyer had stated, in an interview given during a radio programme, that he would not wish to recruit homosexual persons to his firm nor to use the services of such persons in his firm. Having taken the view that that lawyer had made remarks constituting discrimination on the ground of the sexual orientation of workers, an association of lawyers that defends the rights of lesbian, gay, bisexual, transgender or intersex (LGBTI) persons in court proceedings brought proceedings against him for damages. The action having been successful at first instance and that ruling having been upheld on appeal, the lawyer appealed in cassation, against the judgment delivered in the appeal, before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which then sought a preliminary ruling from the Court of Justice on, inter alia, the interpretation of the concept of “conditions for access to employment … and to occupation”, within the meaning of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

Decision

After recalling that that concept must be given an autonomous and uniform interpretation throughout the EU and cannot be interpreted restrictively, the Court interpreted that concept by reference to its judgment of 25 April 2013, Asociația Accept, C‑81/12, EU:C:2013:275. The Court held that statements made by a person during an audiovisual programme, according to which that person would never recruit persons of a certain sexual orientation to that person’s undertaking or wish to use the services of such persons, fall within the material scope of Directive 2000/78 and, more particularly, within the concept of “conditions for access to employment …or to occupation” within the meaning of Article 3(1)(a) of that directive, even if no recruitment procedure had been opened, nor was planned, at the time when those statements were made, provided, however, that the link between those statements and the conditions for access to employment or to occupation within the undertaking is not hypothetical.

Whether such a link exists must be assessed by the national courts on the basis of all the circumstances characterising those statements. Relevant criteria in that regard are the status of the person making the statements and the capacity in which he or she made them, which must establish either that he or she is a potential employer or is, in law or in fact, capable of exerting a decisive influence on the recruitment policy or a recruitment decision of a potential employer, or, at the very least, may be perceived by the public or the social groups concerned as being capable of exerting such influence. The national courts must also take into account the nature and content of the statements concerned, that must relate to the conditions for access to employment or to occupation with the employer concerned and establish the employer’s intention to discriminate on the basis of one of the criteria laid down by Directive 2000/78, and the context in which they were made, in particular their public or private character.

According to the Court, the fact that that interpretation of “conditions for access to employment … or to occupation” may entail a possible limitation to the exercise of freedom of expression does not call that interpretation into question. Indeed, the limitations result directly from Directive 2000/78 and are applied only for the purpose of attaining its objectives, namely to safeguard the principle of equal treatment in employment and occupation and the attainment of a high level of employment and social protection. In addition, the limitations arising from Directive 2000/78 to the exercise of freedom of expression are necessary to guarantee the rights in matters of employment and occupation of the persons covered by that directive, and do not go beyond what is necessary to attain the objectives of that directive, in that only statements that constitute discrimination in employment and occupation are prohibited.

Last, the Court ruled that Directive 2000/78 does not preclude national legislation under which an association of lawyers whose objective, according to its statutes, is the judicial protection of persons having in particular a certain sexual orientation and the promotion of the culture and respect for the rights of that category of persons, automatically, on account of that objective and irrespective of whether it is a for-profit association, has standing to bring legal proceedings for the enforcement of obligations under that directive and, where appropriate, to obtain damages, in circumstances that are capable of constituting discrimination, within the meaning of that directive, against that category of persons and it is not possible to identify an injured party. The Court made clear in that regard that although the directive does not require an association such as that at issue in the main proceedings to be given such standing where no injured party can be identified, it does give the Member States the option of introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment. It is therefore for the Member States which have chosen that option to decide under which conditions an association may bring legal proceedings for a finding of discrimination prohibited by Directive 2000/78 and for a sanction to be imposed in respect of such discrimination. It is in particular for the Member State to determine whether the for-profit or non-profit status of the association is to have a bearing on the assessment of its standing to bring such proceedings, and to specify the scope of such an action, in particular the sanctions that may be imposed, such sanctions being required, in accordance with Article 17 of Directive 2000/78, to be effective, proportionate and dissuasive, regardless of whether there is any identifiable injured party.

 

Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
 ▪

Judgment of the Court (Fourth Chamber) of 29 January 2020, GAEC Jeanningros v Institut national de l’origine et de la qualité (INAO) and Others – Case C-785/18, EU:C:2020:46

Reference for a preliminary ruling – Agriculture – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Protected designation of origin ‘Comté’ – Minor amendment to a product specification – Action before national courts contesting an application for an amendment – Case-law of the national courts according to which the action becomes devoid of purpose when the European Commission has approved the amendment – Effective judicial protection – Obligation to rule on the action

1. Facts

The request for a preliminary ruling concerned the interpretation of, inter alia, Article 53 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1). The main proceedings concerned the amendment of the product specification for the protected designation of origin (PDO) ‘Comté’.

On 8 September 2017, the Minister for Agriculture and Food and the Minister for Economic Affairs and Finance (France) issued a decree approving a minor amendment to the product specification for the ‘Comté’ PDO with a view to submitting that minor amendment to the Commission for approval, in accordance with the procedure laid down in Article 53 of Regulation No 1151/2012. By an action brought on 16 November 2017 before the Conseil d’État (Council of State, France), GAEC Jeanningros sought the annulment of the decree, in so far as it approved that minor amendment. While those proceedings were still pending, by decision published on 1 June 2018 (OJ 2018 C 187, p. 7), the Commission approved the application for a minor amendment to the product specification for the ‘Comté’ PDO at issue, in accordance with the second subparagraph of Article 53(2) of Regulation No 1151/2012.
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Direct effect, interpretation in conformity and primacy in times of COVID-19 – topic reflexions in an interjurisdictional approach in the EU

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator

Departing from the previous UNIO Blog’s contribution “VAT and customs duties in COVID-19 times in the European Union – do the ends justify all means?”, authored by Andreia Barbosa, some other EU law fundamental questions arose concerning the principle of direct effect and its directions, particularly when it is related to Directives’ rules, and its symbiotic relations with primacy and interpretation in conformity.

The consistent jurisprudence of the ECJ (despite doctrinal criticism on the matter) widely exposed its fundamental requirements when the direct effect of a Directive’s rule is being assessed, i.e., there is a need for it to i) create a right in the individuals’ legal sphere; ii) which has to be stated in clear / precise and unconditioned terms; iii) lacking of concretization’s need by a European or national rule.
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