E pur si muove! After all, we do have a highest level of protection of fundamental rights… (about the Taricco saga)

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor

On 5 December 2017, the European Court of Justice (ECJ) ruled again on the Taricco saga. The interpretation set out in the judgment in Taricco I gave rise to heated debate, particularly within the Italian legal community, since the compatibility of the interpretative solution set out therein was called into question in the light of supreme principles of the Italian constitutional order, particularly the principle of legality in criminal matters [Article 25(2) of the Italian Constitution], the disregard of which would allegedly violate the constitutional identity of the Italian Republic.

At the origin of the judgment in M.A.S. and M.B. (or Taricco II) is thus the interpretation laid down in Taricco I regarding Article 325 TFEU, the provision concerning the obligations on Member States to combat fraud affecting the financial interests of the Union. In Taricco I, the ECJ held it to be incompatible with EU law, in particular with Article 325 TFEU, a national regime on limitation periods for criminal offenses which has the effect that facts constituting serious fraud affecting the financial interests of the Union would escape criminal punishment, in the framework of a de facto impunity.

The contentious point was that, within the Italian legal system, and with support of constitutional case-law, the legislation governing limitation periods of criminal offences is characterised as being substantive (rather than procedural) in character and is, therefore, subject to the principle of legality in criminal matters laid down by Article 25(2) of the Italian Constitution. Since the Italian constitutional order would ensure (according to the Italian Constitutional Court) a higher level of protection of fundamental rights than the one guaranteed under EU law, the Italian Constitutional Court held that both Article 4(3) TEU (respect for national constitutional identities) and Article 53 CFREU (principle of the highest level of protection of fundamental rights) would allow national courts not to comply with the obligation laid down by the ECJ in Taricco I (see commentary here).

Continue reading “E pur si muove! After all, we do have a highest level of protection of fundamental rights… (about the Taricco saga)”

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Lost in the Nacional Parliament’s Hallways: The Directive 2005/36/EC and the difficult path until its proper application in Portugal

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by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho

The precedence of EU law over the law of the Member States is one of the fundamental principles of the Union. The Member States must comply with the European dispositions and shall not issue legislation contradicting EU law. To do so would be a breach of the principle of loyalty (art. 4(3) TEU). However, the states do not always legislate with the proper rigour and responsibility and when this occurs the principle of direct effect is key to assure a uniform application of the European Law and the protection of the European citizens.  In this short essay we shall study how the Portuguese legislator after correctly implementing the Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (through the Law n. 9/2009, of 4th March) proceeded to change the Portuguese legal framework (through the Law n. 31/2009, of 3rd July[i]) putting our law in direct contradiction with the Directive and how the solution, still in force, came in the form of the direct application of the Directive’s provisions.

Introduction – The Legal Framework

The Directive establishes the rules  “according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (…) shall recognise professional qualifications obtained in one or more other Member States (referred to hereinafter as the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession”.

Continue reading “Lost in the Nacional Parliament’s Hallways: The Directive 2005/36/EC and the difficult path until its proper application in Portugal”

Summary of Costa/ENEL – 6/64

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: primacy; competition rules; non-discrimination; nationalisation; state aid.

Court: CJEU | DateJuly 15th 1964 | Case: 6/64 | Applicants: Faminio Costa vs Ente Nazionale Energica Elettrica

Summary: The Italian Republic nationalized the production and distribution of electric energy. In the middle of the proceedings, Mr Costa, shareholder of an energy company affected by the sector nationalization requested the application of article 177 of EEC Treaty to obtain the interpretation of articles 102, 93, 53 and 37 of the same treaty. To Mr Costa, this nationalization infringed the articles mentioned above. The Giudice Consiliatore decided to send a question to CJEU:

“Having regard to Article 177 of the Treaty of25 March 1957 establishing the EEC, incorporated into Italian law by Law No 1203 of 14 October 1957, and having regard to the allegation that Law No 1643 of6 December 1962 and the presidential decrees issued in execution of that Law (No 1670 of 15 December 1962, No 36 of 4 February 1963, No 138 of25 February 1963 and No 219 of 14 March 1963) infringe Articles 102, 93, 53 and 37 of the aforementioned Treaty, the Court hereby stays the proceedings and orders that a certified copy of the file be transmitted to the Court of Justice of the European Economic Community in Luxembourg.’”

Continue reading “Summary of Costa/ENEL – 6/64”