Editorial of July 2020

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator


e-Justice in times of COVID-19 – someone pushed fast-forward?
Follow-up on the eUjust Jean Monnet Module “EU Procedure and credits’ claims: approaching electronic solutions under e-Justice paradigm”

We have already stressed the impact new information and communication technologies (ICT) are able to have on justice administration throughout Europe.

In fact, when Digital Single Market was developed, and interoperability was the method adopted, the EU established the need to pursue the paramount of e-Justice.

Insofar, as derived from the Council’s 2019-2023 Strategy on e-Justice, e-Justice paradigm “aims at improving access to justice in a pan-European context and is developing and integrating information and communication technologies into access to legal information and the working of judicial systems” since “[p]rocedures carried out in a digitised manner and electronic communication between those involved in judicial proceedings have become an essential component in the efficient functioning of the judiciary in the Member States” (paragraph 1).

In order to achieve this, the elected method was the one of interoperability, which was firstly recognised in the implementation of e-Government. However, as the time went by, it was elevated to a general principle of EU law, not only relevant on e-Government but also on e-Justice fields (see, on the matter, paragraphs 8 to 11 and 24 of the mentioned e-Justice Strategy), as it was perceived to be the less expensive and the most capable mean to put national digital solutions communicating among each other and to interconnect them to equivalent systems running before EU institutions, bodies and agencies.
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Competition and corona crisis in Spain

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 by María Pilar Canedo Arrillaga, Professor of Law, University of Deusto

1. Spain is one of the countries that has been more seriously affected by the COVID19. In order to protect the health of citizens, the Spanish Government adopted some rules that radically limit the social and economic activity in Spain imposing the obligation to stay at home for citizens for a long period and ordering what has been called “the hibernation of the economic activity” for 15 days in all the non essential sectors (mostly health services, security and food)[i]. Those rules are having a dramatic effect in the economy especially in the labour market. This has implied the most relevant rise in the unemployment figures in Spain since the arrival of democracy in 1978[ii]. Also, they are having huge implications in the protection of legal certainty and social and personal rights of the citizens. Those consequences have a more relevant impact in the weaker actors in society both from the social and economic perspective and therefore the Government has decided to take measures with the aim of reducing the impact of the crisis in economy in general and, in particular to help those more harmed by the situation[iii].

2. It is evident that the most relevant overriding reason of general interest, which is human life, needs protection. That implies limits in the rights of the people that we could not foresee some months ago and those radical changes in social and economic behaviours will have impact in our business and industrial economy not only in the short term.

In these circumstances we can hear more radical voices claiming for a change in our economic model towards one in which the public sector controls different aspects of society, including company’s ownership[iv]. Others claim for public control of economic activity and/or business behaviour[v]. Others claim for higher protection to the companies so they can contribute to lower the destruction of employment[vi].

Also, we can witness some (infrequent) business behaviours that profit the situation of need and legal exception and maximize their benefits in abusive ways that fall under different prohibitions of the law. Some of them, with criminal implications, others, with labour, tax, social security or competition law[vii].

Dealing with the latter, there is an increasingly relevant movement that asks for a more lenient application of the competition law rules and principles in reference both with the administrative and legislative measures adopted to tackle with this situation and its application and with the enforcement activities conducted by the competition authorities.
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Pandemic and dystopia

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 by Joana Aguiar e Silva, Professor at the School of Law, UMinho


We have been following the reflections that Giorgio Agamben has been sharing on the page of the Italian publisher Quodlibet, regarding the pandemic we are experiencing. Without really contesting the political decision that determined the quarantine regime in Italy, the philosopher of Homo Sacer is shocked by the numbness of a society that so passively accepts successive institutional measures seriously constraining its fundamental rights. Measures that openly contend with the most legitimate cultural and political traditions of the West, based on values of freedom, tolerance and the promotion of human dignity.

The statements he has made regarding the present moment of exception have sparked the most intense debate both on the part of public opinion and on several academic circles. Referring to the invention of a pandemic, he points the finger at the media, which, without due scientific basis, and with populist and demagogic interests, spreads panic in communities far too used to living in a permanent state of fear. Tracing parallels between the pandemic and terrorism, he claims we have been living with the constant fear of the other for far too long: the eternal foreigner, metaphor of an eternal threat, as a potential terrorist or, today, as a potential “infector”. (An)other, the enemy, which is now within us, invisible and silent.
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Thinking about the post-COVID-19 world is putting the European Green Deal into practice: this is the time for the European Union to respond in line with “green”

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 by Nataly Machado, Master's student in EU Law, UMinho

There are several reports of reductions in pollutant emissions caused by the global shutdown due to the pandemic. Images taken via satellites and drones show us the record of abrupt drops in air and water pollution levels[i].

Unfortunately, there are also news about increased deforestation in areas such as the Amazon and the Pantanal[ii], concomitant with the new coronavirus crisis. In addition to what happens during the pandemic, the concern exists for the forthcoming post-crisis, which may show a sharp increase in the level of pollutant emissions due to the economic recovery, as occurred in other post-crises, such as the Spanish flu in 1918, the Great Depression in 1929 and the financial crisis in 2008[iii].

It is a reality that the new coronavirus has changed and will change, drastically, the people’s and public authorities’ priorities. Life must be protected. Until a vaccine is developed, public health control measures combined with strict social and economic measures will be implemented to handle the consequences that have already affected many countries around the globe.
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World Health Organization Guidelines, COVID-19 Pandemic and Transnational Law

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 by Carla Piffer, Professor of Law, UNIVALI (Brazil)
 and Paulo Márcio Cruz, Coordinator and Professor of Law, UNIVALI (Brazil)

The novel coronavirus disease (COVID-19) has rapidly spread worldwide. It gained a pandemic status, and is currently affecting, without distinction, the most (and the least) important world powers. We are facing a global public health crisis with unprecedented economic effects. Actually, we fear something that, in fact, cannot be seen.

Since infectious diseases began to have endemic, epidemic, or pandemic characteristics, the bases for combating them started to have fundamentally transnational characteristics from the second half of Modernity. Especially from the beginning of the 20th century, at a time when many cases of infectious diseases began to be registered in the control systems of official health agencies, these facts started to gain visibility through the media, which began to report on the existence of endemics, epidemics, and the consequent risk of pandemics.
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Gender (in)equality in time of COVID-19

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 by Helena Ferraz, Master's student in Human Rights, UMinho


“The Captain looked at Fermina Daza and saw on her eyelashes the first glimmer of wintry frost. Then he looked at Florentino Ariza, his invincible power, his intrepid love, and he was overwhelmed by the belated suspicion that it is life, more than death, that has no limits.”
Gabriel García Márquez[i]


Humanity sails in rough seas. It is possible to see from a distance the yellow flags. “Plague’s on board!” – leaders from all around the world announce. The sign of death and illness, unlike what Florentino Ariza did, is not just an artifice to take pleasure of Fermina Daza’s love without any kind of discomfort. This year’s rough reality makes humanity mourn the loss of another two hundred thousand lives – and, unfortunately, it is still not possible to see the redeeming light at the dark sea-line of uncertainties.

The coronavirus, an invisible and common enemy, understands us as what we unquestionably are: human beings. We share the same vessel – the planet Earth – but it is possible to take notice that the trail of destruction does not hit everyone in the same way. In exceptional times like the ones we live in, we are indeed faced with indigestible underground realities, left in the zone of the unsaid, of what is normal, natural, as if they are given realities, whose symbolic representation is culturally reproduced.

In this article, we will focus our analysis on the impacts of the pandemic in relation to the gender inequalities, specifically in relation to the sexual division of labor, and its consequences in the personal, family and professional life of women, with reference to the European Union legal framework on gender equality.
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The Household Mask – The Fundamental Right to the Access to Justice and to Online Court Sessions in times of COVID-19

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 by Marcílio Franca, Professor at Federal University of Paraíba (Brazil)
 and Inês Virgínia Prado Soares, Federal Judge (Brazil)

The application of contention measures and social isolation due to COVID-19 has caused a great impact on the operation of the whole justice system – in courtrooms, law firms etc. in the world and in Brazil alike. Brazil’s National Council of Justice (Conselho Nacional de Justiça – CNJ) has been working from home since March 12 as a way to administer justice during the most critical period of the pandemic. On March 26, The National Council of the Prosecution Office (Conselho Nacional do Ministério Público – CNMP) determined the uniformization of the measures to prevent Coronavirus at all branches of the Prosecution Office in Brazil, making remote work and conference calls mandatory.

In turn, Brazil’s highest Court, the Supreme Federal Court (Supremo Tribunal Federal – STF) published Resolution 672/2020 on March 27 to allow the use of conference calls on its trial sessions. Such document, as those issued by CNJ and CNMP, does not detail the formalities to be respected, which intuitively leads us to believe things must be done as they always have been, including themes such as language and the attire.
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Editorial of June 2020

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 by Carlos Abreu Amorim, Professor of Administrative and Environmental Law, UMinho


The European Green Deal as a model of world leadership in the recovery of Covid-19 crisis

In July 2019, the candidate for President of the European Commission, the German Ursula von der Leyen, presented a program entitled “My Agenda for Europe, Political Guidelines for the Next European Commission 2019-2024”. Concrete goals were set there during her tenure, such as “An European Green Deal”; “An economy that works for people”; “A Europe fit for the digital age”; “Protecting our European way of life”; “A stronger Europe in the world”; “A new push for European democracy”. Those axis were reaffirmed on 1st December 2019, when she took office as president of the new college of commissioners.

Although these priorities are necessarily interlinked and can be considered as similar challenges, we highlight the European Green Deal as a remarkable turning effort in the institutional logics of environmental protection adding a desired projection of the will of the European Union (EU) to assert itself as a world leader in the defense of the values of justice, solidarity and quality of life, amongst which safeguarding the environment is the indispensable background of our times.

This is not the first European plan for environmental protection, of course. The history of the EU’s environmental policy is long, notably since the Paris Summit, held from 19th to 21st October 1972, following the then hopeful and innovative success of the United Nations Conference on the Human Environment, which took place a few months earlier in Stockholm from 5 to 16 June, through the modifications of the Treaties which enabled the express consecration of the protection of environmental values with the Single European Act (1986) until the Treaty on the Functioning of the European Union (2007).[i] In this context, the EU has already approved seven multi-annual environmental action in the field of the environment since  1973, the latter of which was adopted by the Council and Parliament in 2013  to be in force until 2020.
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The tax treatment of non-performing loans, Covid-19 and the need for harmonisation at the European level

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 by João Sérgio Ribeiro, Professor of Tax Law, UMinho


Introduction

The tax treatment of bank loan losses has been a controversial issue.  Banks generally want tax rules recognising loan losses to conform in a close manner to regulatory accounting, in order to obtain tax benefits from loss provisioning. Tax officials, on the other hand, often fear that accepting said close conformity for tax purposes will dramatically reduce corporate tax paid by banks.

Loan losses represent inevitable costs that banks have to bear in order to generate income. Therefore, these losses should be accepted as an expense for both tax and financial purposes. The fundamental question is, at the end of the day, when and how non-performing loan losses should be recognized as an expense for tax purposes.

Now, with the Covid-19 crisis and the most certain upsurge of non-performing loans, the topic gains added relevance. The tax treatment of non-performing loans varies greatly around the world, and the European Union is not an exception.
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Time for a Little More Time? Post-Brexit Trade Negotiations and the Current Pandemic

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU

Background

In the present context of the COVID-19 pandemic, with its impact on the health, economic and social systems of states around the world, it appears somewhat trivial in comparison for the UK and the EU to be still pursuing agreement in the post-Brexit negotiations. On 18 March, the Union published its draft legal agreement for the future EU-UK partnership, in accordance with its 2020 Negotiating Directives and the 2019 Political Declaration of the parties. And while, by then, the UK had not presented a comparable document, its approach to the negotiations had been published on 27 February. From these sources, it would be fair to draw the conclusion that there remain many outstanding issues that need to be discussed and resolved. Among them the maintenance of a “level-playing field” to ensure fair competition and protection of standards; fisheries; financial services; security and police matters; and the role of the Court of Justice of the European Union or another mechanism for resolving disputes under a Comprehensive Free Trade  Agreement (CFTA). Even the negotiating styles are different, with the UK seeming to display a sort of “pick-and-mix” approach – essentially using as precedents different provisions selected from various agreements (that the EU has already concluded with other third countries), collecting them together and then arguing for their inclusion in the CFTA.

Given these real challenges, the onset of the pandemic appeared initially to have caused only ripples on the surface of the negotiations. In fact, the UK desired to portray a “business-as-usual” approach to the negotiations and so to “carry on regardless” with them through video conferencing. Moreover, shortly before he himself was quarantined and hospitalised for the virus, the British Prime Minister Boris Johnson in his daily coronavirus press briefings was continuing to repeat the mantra of sticking to the 31 December deadline. Only with Michel Barnier’s diagnosis with the virus, the need for more officials on both teams to self-isolate and the recognised limitations to video-conferencing, were the negotiations suspended at the end of March 2020.
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