Tag: Democracy

Editorial of February 2021

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Alessandra Silveira (Editor) and Alexandre Veronese (Professor at University of Brasília)
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Thoughts regarding the right to deindexation and the weaknesses of the idea of “being forgotten” online – marking the Data Protection Day

28 January 2021 marks the 15th “Data Protection Day” and the 40th anniversary of the Council of Europe’s Convention 108 – the first international legal instrument regarding personal data protection – which was opened for signature on 28 January 1981.

What began as a European celebration is now a yearly commemoration all around the world. This year, to mark the occasion, the Ibero-American Network for Data Protection and the Council of Europe promoted an event targeted to Latin America. It is interesting to know that, coincidentally, the Brazilian Federal Supreme Court (STF) will hear on 3 February a case regarding a type of “right to be forgotten.” This right is the subject inspiring this essay. In light of this fact, it is essential to assess the (jus)fundamental dimension of the right to deindexation and the weakness of the idea of “being forgotten” online.[i]

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Editorial of January 2021

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Pedro Madeira Froufe (Editor) and Tiago Sérgio Cabral (Managing Editor)
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Heresy, realpolitik, and the European Budget

1. The negotiation preceding the final approval of the 2021-2027 Multiannual Financial Framework (hereinafter, “MFF” or “Budget”) has marked by a significant number of twists, turns and eleventh-hour surprises. From the beginning this would always be a difficult negotiation. Being the first budget without the UK as a Member State, on one hand there was the need to show a united European Union after Brexit, but, on the other hand, there was the always unpleasant matter of redistributing the bill among remaining Member States.

2. In 2018, the Juncker Commission proposed a Budget with the value €1 135 Billion. Parliament considered the proposal not to be ambitious enough, an made a reinforced “counter-offer”, naming a much higher price for its consent in its November 2018 Interim Report on the Budget. However, in Council negotiations, the proposal was on track to be severely reduced. Plenty of factions were formed around the budget discussion such as the frugals (who wished to cap the budget at 1% of the GNI) or the friends of cohesion (who were not satisfied with cuts or shifting of funds from cohesion). Europe’s farming industry also lobbied against the decline in importance of the Common Agricultural Policy, and especially direct payments in the budget. At the end, things certainly seemed to be going into a pretty disappointing direction. The most likely result appeared to be a non-innovative budget pushed through after plenty of (arguably) petty squabbling.

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Editorial of November 2020

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Alessandra Silveira, Editor and holder of the Jean Monnet Chair in European Union Law at UMinho is one of the promoters of this manifesto that is being republished here. To find more about the other promoters please follow this link. To read the original manifesto click here.

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The Universal Right to Internet Access Manifesto

Against digital and cognitive gaps

The pandemic caused by COVID-19 has revealed various strengths and weaknesses of international education and communication systems and it is, without a doubt, in these crises, where, out of sheer need for survival, inventiveness and ability to create new opportunities to ensure progress.

The fact that more than 40% of the world population has been forced to confine themselves in their homes for a long period of time, a situation unknown until now for current generations, has forced a change in the life strategies for a large group of people, families and companies.

One of the consequences of this crisis has been the significant intensification of the use of Internet as a means of communication, by increasing videoconferencing tools unimaginable just four months ago, or the constant use of mobile telephones, both to keep in touch with family and friends, and to be able to follow certain work routines linked to this new way of working or simply for leisure reasons. Similarly, it has highlighted the importance of social networks in shaping climates of opinion.

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Editorial of October 2020

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by Filipe Marques, President of MEDEL (Magistrats Européens pour la Démocratie et les Libertés)

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Rule of Law in the European Union: the danger of a systematic change of the concept?

In the last day of September 2020, the European Commission publicly presented the first Rule of Law Report, intended to give an overview of the situation of Rule of Law in all twenty-seven EU Member States[i]. In the introductory words of this document, it is stated the Rule of Law, together with fundamental rights and democracy, “are the bedrock of our societies and common identity”.

The report came out just two weeks after President Ursula Von der Leyen, in her first State of the Union speech before the European Parliament Plenary, recognized that “the last months have also reminded us how fragile [Rule of Law] can be” and pledged to “always be vigilant, to care and nurture for the rule of law” [ii].

The current and ongoing situation in the EU, however, is much too serious to be tackled only with nice words in a speech or data collected in a report. The events and signs coming directly from the ground clearly show us that the time to act is now, before we reach a point of no return.

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Digital publications and protection of constitutional democracy

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 by Ana Aba Catoira, Professor of Constitutional Law, Universidade da Coruña
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The strong impact that the irruption of digital channels has had on freedom of expression has led them to a reformulation process, because, as Lessig pointed out, “specifically the Internet has helped to show the true meaning of freedom of expression.” This profound transformation translates into a “paradigm shift” or change in the classical conception of the rights of information evident in the sender-receiver relationship of information, since all people are now active subjects in the new communicative process.

The prominence of the Internet and, more specifically, of social networks has been fundamental for the propagation of new “informative” practices that count on the invaluable help of artificial intelligence. This reality, already indicated as “information disorders”, was characterized by false news, post-truth, bots and other phenomena that distort the right to give and receive truthful information and intoxicate public opinion that is no longer free.
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Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development

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 by José Igreja Matos, President of the European Association of Judges
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1. Stating the obvious

The reference for a preliminary ruling, provided for Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union is an essential instrument for the European Union and, in particular, for national judges.

It is aimed to guarantee the uniform interpretation and application of EU law by offering to the courts and tribunals of Member States a procedure to acquire from the Court of Justice of the European Union a preliminary ruling concerning the interpretation of EU law or the validity of acts adopted by the institutions of the Union.

As easily predictable, the impact of a preliminary ruling procedure in EU legal system is immense also because the rulings of European Court of Justice (ECJ) are assumed as generally binding.

The ECJ itself does not have a power to enforce the accurate application of EU law; this is the reason why national courts or tribunals are obliged to bring the matters in question before the Court as frontrunners of the application of EU law.

The reference for a preliminary ruling is the only way for the national judges to directly convey with ECJ. This procedure helps the ECJ control on how the national courts apply EU law providing the uniformity and certainty essentials to the success of our Union.

Another aspect of major significance could be furthermore underlined: the preliminary ruling also ensures the protection of the rights of individuals. EU laws, in particular the criminal law, fall to be interpreted in accordance with the Charter of Fundamental Rights. The Article 6(1) of the Treaty of European Union affirms: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties”. In general terms, the Charter applies to Member States when they implement Union law (Case C-292/97 Karlsson and Others); therefore, the interpretation of the Charter provisions tends to be, if not now, in the foreseeable future, a fertile ground for the use of the preliminary ruling procedures.

The Member States are bound to respect fundamental rights in judicial cooperation, for instance, if a Member State is extraditing someone to another Member State in accordance with the scheme established by the European Arrest Warrant Framework Decision.
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Editorial of June 2019

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 by Alessandra Silveira, Editor
 and Sergio Maia, Managing Editor

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Strengthening the rule of law in the EU on the D-Day 75th Anniversary

On 3 April 2019, the European Commission opened a debate to strengthen the rule of law in the EU and setting out possible avenues for future action. The Commission invited the European Parliament, the European Council and the Council, and the Member States as well as relevant stakeholders, including legal networks and civil society, to reflect on this issue and contribute with concrete ideas on how the rule of law toolbox could be enhanced in the future. Building on this reflection process and the ongoing debate, the Commission will return to this issue with its own conclusions and proposals in June 2019. As first Vice-President Frans Timmermans said, the Union’s capacity to uphold the rule of law is essential, now more than ever. First because it is an issue of fundamental values, a matter of “who we are”. Second, because the functioning of the EU as a whole depends on the rule of law in all Member States. The confidence of all EU citizens and national authorities in the legal systems of all other Member States is vital for the functioning of the whole EU as “an area of freedom, security and justice without internal frontiers”.[i]

On this 6 June 2019, D-Day 75th Anniversary, we add more one reason:  European integration emerged as an anti-fascist response to the collapse of the rule of law in the period between the two World Wars. What is important to highlight now is that all the legal-constitutional construction of the post-war in Europe is based on the idea that democracy, in the absent of the rule of law, becomes the tyranny of majority. Without the rule of law, we have nothing, only the nationalist populism and its disastrous consequences. Nationalist populism knows that, being a form of political communication that attempts to reach its goals by breaking the dialectic connection between democracy and rule of law.  So, as the rule of law can be improperly used, the main question in this context is to know what is the substance of the Union based on the rule of law.
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Editorial of April 2019

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 by Sophie Perez Fernandes, Editor

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First steps in a literacy campaign for a European political community – what is the EU based on the Rule of Law?

When one is asked to approach the legal dimension in a panel on the theme «European political community and cosmopolitan literacy»[i], one is confronted with the vastness and multiplicity of the subject, the critical nature of its importance and the overwhelming responsibility of the task… Underlying it are crucial questions about how to approach – in the sense of conceiving, accepting and, above all, living – the European Union as our collective destiny. And the challenge is also to discern the role of the Law in this endeavour aimed at building, revealing the meaning and living in a European political community.

That said, before embarking on an EU literacy campaign, a preliminary step would likely be to undertake what could be called a literacy campaign of the Law. And the reason is obvious: the European integration process is, above all, a process of integration through Law. From the very beginning, the European integration process has sought to «unite the peoples of Europe», to employ the terminology of the Treaties, not by the force of weapons, but by the force of norms – which, to a certain extent, consequently converts jurists into soldiers of the European integration process and of building a European political community – hence the overwhelming responsibility…
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Europe’s hopes and fears

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Burning Man 2006

by Mariana Canotilho, Editor
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According to the latest Eurobarometer, published in December 2018, immigration is the EU citizens’ main concern at the moment. With terrorism quickly falling, citizens are increasingly worried about Member States’ public finances (again!), the economy, and climate change (which is reaching new highs in every barometer).

The common feature between all these concerns is the fear of losing one’s way of life. European democracies are supposed to be about just that – democracy – but also about social cohesion, a broad catalogue of fundamental rights (including social and economic rights), freedom and peace. A citizen of a EU Member State expects to ‘live a good life’; a safe and prosperous life, using his or her capabilities to the fullest. A life that is free from fear of poverty, of economic and social turmoil and of uncertainty.

The multiple and complex crises of the last decade have highlighted that such a life is no longer possible for many people, in the EU. In a way, all the crises have flown into the big sea of the Union’s fundamental problem, which seems to be a crisis of solidarity. Solidarity towards migrants, who flee from war and disaster, but also towards southern countries dealing with economic and social upheaval (due to decisions that were not only their fault) or eastern European countries facing a scary turn in the direction of ‘illiberal democracies’. The Union’s answers have been late and not nearly enough.
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Editorial of March 2019

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 by Allan F. Tatham, Professor at the Faculty of Law of University CEU San Pablo

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“Shindler’s Wish” Fulfilled and More? The Possibilities for Re-enfranchisement of UK nationals and EU citizens in a future People’s Vote on Brexit

Introduction

In the afternoon of 25 February 2019, with just over four weeks to go before the country’s expected withdrawal from the European Union, the UK Labour Party leader, Jeremy Corbyn, finally announced his party’s support for a second referendum on the issue.[1] Having already been passed as a resolution by the Labour Party conference in autumn 2018[2] and supported by the majority of party members,[3] it no doubt took the recent resignations of MPs from the party[4] finally to persuade the widely-regarded Eurosceptic Corbyn to swallow the bitter pill for a People’s Vote (PV) on the Brexit deal, “secured” by the cabinet of Prime Minister Theresa May.[5]

However, within the furore caused by his change of heart still hanging in the air, even if (and, at this stage, it is still a very big “if”) the UK Parliament were to vote in favour of a second popular vote, several points will need to be addressed anew.
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