Fyodor Dostoyevsky and the primacy of EU law: overcoming the “eternal husband complex”


by Alessandra Silveira, Editor

The Arts have always helped the human being to organize the knowledge and to provide a way to understand the meaning of things. The recent decision of the German Constitutional Court[i] on the European Central Bank (ECB) and its Public Sector Purchase Programme (PSPP) has served to create distrust in an atmosphere that is already very sensitive – and it has reminded me an academic episode that shows the role of the Arts in the process of learning. A few years ago, I carefully assessed a paper presented by a Master’s student entitled «Constitutionalism and the principle of primacy of EU law: overcoming the ‘eternal husband complex’». The unexpected title touched on “The Eternal Husband”, Fyodor Dostoyevsky’s literary work. Of course, this needs to be contextualized.

It is said that Russians under czarist rule used to refer in this way, “eternal husband”, to those who never dared to separate from their wives, regardless of the misfortune of the conjugality – from the mere lack of interest to adultery. Adapting the characters to the legal script of integration, the Master’s student explained me his objectives. He wanted to show that the constitutional system of checks and balances which guides the functioning of the EU legal order prevents EU Institutions from betraying the principles that establish and sustain the Member States constitutional paradigm. Therefore, the student argued, there are no credible reasons for resentments and misgivings – and it is urgently required to overcome the “eternal husband complex” of the national constitutionalism.

If we test this argument in light of the concept of European Union as a Union of law, we will conclude that the student may well be right. That legal principle affirms the idea that the Union is based on the rule of law, inasmuch as neither its Member States nor its Institutions can avoid a review of the question whether the measures adopted by them are in conformity with the EU basic constitutional charter – the Constitutive Treaties. Therefore, the principle of primacy of EU law does not qualify each and every EU legal act, but only those issued in accordance with the Constitutive Treaties – and the ECJ is solely responsible for assessing this validity. According to Article 19(1) TUE, the ECJ shall ensure that in the interpretation and application of the Treaties the law is observed, i. e., the ECJ is who decides on the scope and the exercise of the EU competences.
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Editorial of June 2017


by Alessandra Silveira, Editor

Waiting for a federal big bang in EU? Updating the theory of federalism in times of liquid modernity

On May, 22-23, at Nova Law School, Lisbon, took place a conference on “The federal experience of the European Union: past, present and future”, organized by Professor Nuno Piçarra. Sixty years after the signing of the Treaty of Rome and twenty-five years after Maastricht, the EU may be living a true moment of “constitutional mutation” that may dramatically change its identity. Yes, it is possible to re-found the EU without revising the Treaties (as constitutional mutation is nothing new and it has been working since the beginning of the integration) and without committing “semantics imprudences” (avoiding the “blasted” nature of terms such as constitution and federation). Therefore, this is the right time to address the EU federative experience from an historic perspective and to analyse the role which such an acquis may play in the shaping of the future EU. For these reasons, the purpose of that conference was to tackle the following three questions. First, how should we evaluate the EU federative experience, sixty years after the signing of the Treaty of Rome? Second, which are the main challenges facing the EU in the light of its federative experience? Third, do these challenges and respective answers suggest that the European federative dream is over, or just undergoing a new form of development?

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Eurogroup and secrecy


by Andreia Barbosa, PhD student at the Law School of UMinho

It is clear from Article 1 of Protocol No 14, annexed to the Treaty on the Functioning of the European Union, that Eurogroup meetings take place informally.

Informality is reflected in two aspects. First, according to the terms in which the meetings are held, that is, as to the procedure adopted therein. In fact, there is no set of rules defining the procedure to be followed, for example, to ensure the involvement of all actors and to determine the order in which such interventions can be carried out and the duration they may have. Secondly, the terms in which «decisions» are taken and how they are made known to the public. It is through press conferences that the outcome of the meetings is presented to citizens of the Union (and when they are).

It should be noted that we refer to «decisions» as a result of Eurogroup meetings, even though we know that the formal, final, and binding decision on the subject is actually taken at the Ecofin meeting. However, we are also aware of the fact that the votes made at Ecofin express the outcome of the previous Eurogroup meeting. The final decision of Ecofin was born in the Eurogroup.

So, the informality resulting from Article 1 of Protocol No 14 actually means «opacity». Contrary to the idea of necessary transparency and publicity in all decision-making centers, no minutes or documents are signed in the Eurogroup, there are no transcripts or records relating to the respective meetings. No database has ever been set up to add up the «decisions» taken. The proposals under discussion, the presented votes, the conflicts of interest that have arisen and the commitments made are not known. Moreover, the acts of the Eurogroup can not be syndicated before the Court of Justice of the European Union, even though they are not documented, neither on paper nor in audio or video.

Although a certain procedural informality is admitted (but still susceptible of criticism), it does not seem to admit an opacity in the decisions. In abstract, a procedure can be informal and simultaneously transparent. In particular, the functioning of the Eurogroup may be informal, but its «decisions» should not be opaque. And the lack of transparency that exists goes beyond mere confidentiality.

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General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 2]

[This is the second part of a comment on the Portuguese elections aftermath, the author will soon provide the final part of this article – PART 3.]
by Sérgio Maia Tavares Marques, Jurist and 
student of the Master's degree in EU Law of UMinho




Previously, I have argued that the seeming failure of Portugal for not presenting the draft for the annual budget within the deadline fixed in the TSCG could not be considered a failure. I pointed that the reason for that fact (the delay/failure) was the political negotiation process in the country that it was not yet concluded at that time following a post electoral circumstance never seen before. Days have come and gone and on 26th of November a new Socialist + Leftist parties government took over. Mr. António Costa came to office in replacement of the right wing coalition led by PSD and the former PM, Mr. Pedro Passos Coelho, who had been originally nominated by the President. However, a motion of rejection was voted and approved by the left wing parties altogether and a new cabinet was formed and got in place.

As I underlined, my point was that it was not possible, nor advised for Portugal, to send the European Commission a budget draft when an upcoming administration (with its expenditure priorities) was still unknown. The country could not commit itself to figures that would only be mythical and/or misplaced. Plus and more importantly, I reasoned (in constitutional pluralist terms) that the appointment of a new government, as a direct result of the people´s will expression, can only be considered part of a national identity. In that sense, it falls within the scope of article 4/2 TEU. Therefore, the EU should encourage the demos and not persecute it. Nonetheless, Mr. Valdis Dombrovskis pressured Portugal with possible judicial actions and the situation was put on hold.

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General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 1]

[This is the introductory part of a comment on the Portuguese elections aftermath, the author will provide further updated analysis on the topic.]
by Sérgio Maia Tavares Marques, Jurist and 
student of the Master's degree in EU Law of UMinho

Before the third and final beep sounds – which is in theatrical and operistic traditions the last notice for the foyer to be vacated and for seats to be taken – I must briefly point out that my goals with these contributions and this category are not properly rigorous from a scholar vantage point. Academically strict writings are to be found on Reviews and Essays. What we are looking for here on News and Comments is inter alias to encourage free and open debate, a reflection start-up so to speak. So… take your seats and take part!

i) As in every premiere, it seems only suitable to meta-analyse what lies before us. UNIO Blog comes to stage at just the right time to promote academic discussions involving the European Union and its legal/political system throughout society. In the path of the finest European tradition, the Centre of Studies in European Law of University of Minho (CEDU) deserves a project of this kind due to its acclaimed reputation. Research centres of European DNA are known for their critical autonomy and for spreading ideas, for scientific freedom and for intercultural pluralism. Concerning both their agents and their contents. Know this, all readers, authors, partners and critics, such values are in the core of this blog. They move it.
Some of the greatest journals and reviews of the world keep a platform like this one in order to enhance more informal, open and free considerations amongst their collaborators. Unlike the American experience in which it is absolutely and placidly accepted the express and public defence of a certain line, stream or current of thought as well as its interests´ protection to which the think tank adheres, this space is the respectful democratic house of the most diverse scientific-academic theoretical orientations.

ii) Let´s move to the substantial matter of this comment.
The subject has been on the news. Portugal has been seeing a complex election afterwards situation. Not only politically, but also historically and legally/constitutionally. For the first time in 40 years, – that is since democracy was re-established with the dissolution of the Salazarista regime – the winning party is not able to present a stable government proposal. The coalition between right-wing PSD (89 elected members) and CDS (18) does not hold majority in the Parliament and it has failed to accomplish some sort of agreement (by abstention, for instance) with the Socialists (86) and Leftists (19 + 15 + 2). Altogether the latter group can compound an absolute majority to form the government.
Apart from questions concerning the legitimacy of an alliance shaped only after the elections and the anti-EU agenda of leftist parties, the issue that interests us here is the formation of a new government.

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