Tag: environment

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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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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Why is the demarcation of indigenous peoples’ territories in Brazil important to achieve European and global climate goals?

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Cecília Bojarski Pires  (PhD Candidate at the School of Law of the University of Minho)
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Indigenous and tribal peoples’[1] ancestral territories are essential for climate stability and resilience.[2] “Their territories contain about one-third of all the carbon stored in Latin America and the Caribbean forests and 14 percent of the carbon stored in tropical forests worldwide”.[3] It is indisputable that the role played by indigenous peoples is vital in terms of global climate action, but that is not all. This article aims to demonstrate the importance of preserving indigenous peoples’ lands to achieve European and global climate goals, protect the forests and other ecosystems, conserve biodiversity, and prevent climate change. Furthermore, it is a matter of respect for human rights, a European value.

According to Villares,[4] indigenous peoples are united to the land and all its elements. Moreover, the land is not just a tangible material element but a subjective element that takes on a transcendental character. Thus, the territory is occupied and developed by everyone in that community. For that reason, indigenous peoples’ production system is, in general, much less predatory. The consequence of this special way of dealing with the land means that indigenous peoples can use natural resources without putting ecosystems at risk. It makes them indispensable for guaranteeing environmental conservation and contributing to the fight against poverty, hunger, and malnutrition.[5]

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Editorial of September 2023

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By the Editorial Team
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Impact of climate change on children and young adults

At the end of November 2020, international media[1] reported that the European Court of Human Rights (ECtHR) had ordered 33 European governments to respond to a landmark climate lawsuit lodged by four children and two young adults from Portugal – Duarte Agostinho and Others, no. 39371/20. The media pointed out that this could be the most important case ever tried by the European Court; it is the first occasion the Court has had the opportunity to grapple with climate change and its impact on individuals. The case was filed in September 2020 after Portugal recorded its hottest July in 90 years. It was initiated three years ago following the devasting forest fires in Portugal that killed more than 120 people in 2017. The ECtHR will be holding a hearing for this case on 27 September 2023.

The young applicants are being represented by British barristers, experts in environmental and climate change law, and supported by the London and Dublin based NGO “Global Legal Action Network” (GLAN).[2]  At the request of GLAN, some Editors of UNIO provided a (pro bono) legal opinion for that case concluding that the Portuguese judicial regime is not equipped with a mechanism that allows the prosecution of all the pursued/targeted countries and that any decision issued by a Portuguese court would have limited territorial scope.  

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The Nature Restoration Law in the European Parliament

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Isabel Estrada Carvalhais (MEP | Full Member of the Committee of Agriculture and Rural Development and of the Committee of Fisheries | Member of the Group of the Progressive Alliance of the Socialists and Democrats)
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Introduction[1]

This is not an article with academic purposes and even its modest informative and reflective intent is far from complete. Its main aim is to contribute to further information and reflection on a quite important topic presently on top of the European political agenda: the Nature Restoration Law.

I suggest we look at the European Commission’s (EC) proposal for a regulation on the restoration of nature (hereinafter referred to as the Nature Restoration Act or NRL), at the on-going negotiation process in the European Parliament (EP) with recent votes in two associated committees (the Committee on Agriculture and Rural Development and the Committee on Fisheries) and in the EP leading committee (Committee on the Environment, Public Health and Food Safety).               

Let us start from the beginning and the beginning is not in the EC proposal itself, but a bit further back, in the conclusions of the European Council of 20 June 2019, immediately after the European elections of 26 May.

The conclusions provided (and still do) a clear preview of the key priorities for action in the European political agenda, as understood by the heads of state and government of the 27 Member States. It is important here to make this reference especially in a social context where we tend to ignore (or are instrumentally led to ignore) the active role that our states and our rulers play in the design of the European project. Chapter III of the conclusions of the European Council[2] reads as follows: “The European Council underlines the importance of the Climate Action Summit that the UN Secretary-General will organise in September 2019 to strengthen global climate action in order to achieve the objective of the Paris Agreement, including by pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, and welcomes the active participation of Member States and the Commission in the preparations.”

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Sustainability and trade marks

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Maria Miguel Carvalho (Associate Professor with Habilitation, School of Law, University of Minho, Portugal. Director of Research Centre for Justice and Governance, School of Law, University of Minho, Portugal)
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Introduction*

The importance of intellectual property [IP] in the pursuit of goal 9 of the 2030 Agenda (build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation) is often mentioned and, upon the initiative of the World Intellectual Property Organization [WIPO], was already the leitmotif of the World IP Day in 2020 (“Innovate for a Green Future”)[1], although for the most part only patents and utility models are mentioned. However, due to a growing awareness on the part of consumers [the “green” consumers (LOHAS consumers)][2] on the impact of their choices, in recent years the role that trade marks might play in this domain is also emerging[3] (e.g., the 2022 MARQUES Annual Conference theme: “Celebrating marks: How sustainability and technology will shape the future of brands”).

Trade marks are distinctive signs of products or services that provide relevant information to consumers. They can therefore play a highly relevant role concerning, in particular, the increased choice of products or services distinguished with “green” signs, and thus also encourage companies to adopt (more) sustainable practices. Companies, aware of this fact, have been increasingly adopting the so-called green branding, which consists in using trade marks that suggest that the products or services they indicate are environment-friendly (green marks, eco marks), for example, because they are recyclable.

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Lula’s presidency: what to expect from the European Union – Brazil relationship

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José Manuel Fernandes (Member of the European Parliament and Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil)
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Lula da Silva’s victory in Brazil’s 2022 presidential elections is an opportunity for the strengthening of relations between the European Union and Latin America’s largest country. Taking advantage of the new Brazilian government taking office on January 1, 2023, as well as the unfortunate events of January 8, when protesters invaded Brazilian institutions. In this text, I propose to address what I hope and wish for the bilateral relations between the EU and Brazil in the coming years. For my part, and as Chairman of the European Parliament Delegation for relations with the Federative Republic of Brazil, I take what I write not only as analysis, but also as political commitment.

The size and importance of Brazil continues to elude most Europeans, even the main political leaders. We perpetuate a distant and incomplete vision of what Brazil actually is: a country that represents half of Latin America, both geographically and demographically; the 10th economy in the world; one of the five largest agricultural producers in the world. It is time to recognize Brazil as a global giant, and to treat it as such.

The key word must be “cooperation”. Without paternalism, by mutually recognizing potentialities and weaknesses. Cooperation must have as common ground the values of freedom, democracy, the rule of law, and the uncompromising defence of human dignity and human rights. Environmental sustainability and inclusion are also essential elements for the economic development we must conquer.

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Lula da Silva is President of Brazil once again: are we closing a cycle of lawfare?

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By Guilherme Torrentes (Master in Human Rights from the University of Minho)
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On January 1, 2023, Luiz Inácio Lula da Silva was sworn in as President of Brazil for the third time, after one of the fiercest electoral disputes since the re-democratization of the country (which occurred in 1985), in which Lula da Silva defeated Jair Bolsonaro. It is perhaps the end of a cycle of “lawfare” – a term that can be defined as the strategic use of law for the purpose of delegitimizing, harming, or annihilating an enemy[1] – that is, the perverse use of legal rules and procedures for the purpose of political persecution. This cycle of lawfare was initiated in a tentative way by what became known as “Mensalão” (a “mega” or “maxi” judicial process that culminated in the conviction of several political members of Lula’s first government for corruption) and worsened with the impeachment process of President Dilma Roussef and “Operação Lava Jato” (another “mega” judicial process that culminated in the illegal imprisonment of Lula for 580 days).

This cycle of lawfare has jeopardized the continuity of the democratic rule of law, as the Brazilian judiciary and criminal process have been instrumentalized by the exception and subjectivity undesirable to its performance, in order to achieve the desired political ends. It is worth noting that in 2018, the Brazilian State failed to comply with a recommendation of the United Nations (UN) Human Rights Committee to guarantee Lula the right to run for the presidential elections of that year, invoking its domestic laws to not apply Article 25 of the International Covenant on Civil and Political Rights (which guarantees every citizen the right and the opportunity, without unreasonable restrictions, to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors).[2]

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Editorial of December 2022

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By Nataly Machado (Master in European Union Law from the School of Law of the University of Minho)
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What if mechanisms of solidarity had more effectiveness beyond the borders of the European Union? At least for the climate crisis?

On 24 November last, the European Union (“EU”) energy ministers reached an initial agreement, albeit with some differences[1], on the content of the proposed Council regulation on enhanced solidarity for further temporary emergency measures aimed at curbing high energy prices through better coordination of joint gas purchases on world markets, with the objective of the Member States not competing with each other. Furthermore, they decided on gas exchanges across borders, with “measures enabling Member States to request solidarity from other Member States in cases where they are unable to secure the quantities of gas essential to ensure the operability of their electricity system”[2], and reliable price reference standards, which will provide stability and predictability for Liquified Natural Gas “LNG” transaction prices, with the new index until 31 March 2023. Also, the EU energy ministers agreed on the content of a Council regulation laying down a temporary framework to accelerate the permit-granting process and the deployment of renewable energy projects[3].

The abovementioned shows that solidarity in the context of the EU should have a more pragmatic and concrete approach – and explained by the cooperation between Member States –, since it imposes legal obligations, such as being loyal in mutual relations and undertaking all necessary efforts to achieve common goals. In other words, the possibility of justification for an imposition of solidarity linked to legal duties remains clear, since it is a question of a sharing of common tasks/responsibilities[4].

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