Tag: rule of law

Some additional thoughts on metadata retention – points to consider when adopting new legislation [on joined cases C‑793/19 and C‑794/19 (SpaceNet) and the German legislation on this matter]

On By officialblogunioIn Essays1 Comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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As we have highlighted in this blog, in the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.  Law 32/2008 transposed the rules of Directive 2006/24, which were declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. This case-law of the CJEU has recently (again) been confirmed in the G. D. judgment, according to which: Article 15(1) of Directive 2002/58 (Directive on privacy and electronic communications), read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union (“CFREU”), must be interpreted as precluding legislative measures which, as a preventive measure for the purposes of combating serious crime and preventing serious threats to public security, provide for the general and indiscriminate retention of traffic and location data (recital 129).

Fortunately, the idea of amending the Portuguese Constitution to overcome the problem of the generalised and indiscriminate retention of metadata – which is, first and foremost, a matter of EU law – is losing steam. But there have been some voices that, surprisingly, suggest a change of course in the case-law of the CJEU and the Portuguese Constitutional Court. It is worth remembering that, in a State governed by the rule of law and a Union based on the rule of law, judicial decisions against which there is no appeal must be respected – whether one agrees with them or not. This is our most precious constitutional heritage. In fact, one could argue that if we had carefully considered the implications and respected the decision of the CJEU in Digital Rights Ireland when it was originally ruled, we could have avoided this entire issue.

Continue reading “Some additional thoughts on metadata retention – points to consider when adopting new legislation [on joined cases C‑793/19 and C‑794/19 (SpaceNet) and the German legislation on this matter]” →

Editorial of May 2022

On By officialblogunioIn Editorials2 Comments 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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Metadata retention is first and foremost a matter of EU law: a revision of the Portuguese Constitution will not solve the issue

In the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.[1] Law 32/2008 transposed Directive 2006/24, which was declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. Given the resistance of the Portuguese judicial authorities to abide by CJEU case law in this area – or even refer back to the CJEU in order to clarify any remaining interpretative doubt – the result achieved by the Portuguese Constitutional Court was not only necessary but also desirable.

What is the solution when addressing a situation of judicial deadlock such as the one Portugal was experiencing with regard to the generalised and indiscriminate retention of personal data incompatible with EU law? It would be for the Constitutional Court to declare the invalidity of the internal rules incompatible with EU law, due to the violation of the obligations to which Portugal was bound when it joined the EU – in particular, the European loyalty provided for in Article 4(3) TEU, which is reflected in Article 8(4) of the Portuguese Constitution. In this context, it should be noted that the problem was not originally solved by the ordinary courts, but by the independent public administration. Here it is worth highlighting the Deliberation 1008/2017, of the Portuguese Data Protection Supervisory Authority (“CNPD”), which still in 2017 decided to disapply Law 32/2008 in the situations submitted to it for appreciation.

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Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism

On By officialblogunioIn Essays1 Comment 
Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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Very recently, on March 10, 2022, the Alba Iulia Court of Appeal – Administrative and Fiscal Litigation Section ordered the referral to the Court of Justice of the European Union, based on art. 267 of the Treaty on the Functioning of the European Union, with a new preliminary ruling in close connection with the Rule of law (Case C-205/22, C.D.A.).

In fact, the Romanian court’s request tends to ascertain mainly whether, in the interpretation of the CJEU, the principle of judicial independence enshrined in the second subparagraph of Article 19(1) TEU with reference to Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation, laid down in Article 4 TEU, preclude a national provision, such as that of Article 148(2) of the Romanian Constitution, as interpreted by the Romanian Constitutional Court, by Decision No 390/2021, according to which national courts cannot take account of the provisions of European Commission Decision 2006/928 and the recommendations made in the CVM Reports for the implementation of the benchmarks, on the ground that “national courts are not empowered to cooperate with a political institution of the European Union.”

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Editorial of April 2022

On By officialblogunioIn Editorials2 Comments 
By Alessandra Silveira (Editor)
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Rule of law and the direct effect of the second subparagraph of Article 19(1) TEU (on the case M. F., C-508/19)


Never since the beginning of European integration, was the mission of impartial and independent courts been as important as nowadays, taking into account the war currently being waged. Therefore, it is important to consider that “It is when the cannons roar that we especially need the laws…Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law”, as stated the Advocate General Poiares Maduro in his Opinion in the case Kadi, quoting Aharon Barak, the former President on the Supreme Court of Israel (C‑402/05 P, ECLI:EU:C:2008:11, recital 45).

Last week the CJUE added a piece to the puzzle of a Union based on the rule of law. And do it from the judicial independence in which the effective judicial protection of individuals’ rights under EU law is rooted. More precisely: on 22 March 2022, in the case M. F. (C-508/19, ECLI:EU:C:2022:201), the CJEU has claimed that the second subparagraph of Article 19(1) TEU (according to which “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”) must be regarded as having direct effect.

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Note from MEP José Manuel Fernandes regarding European Parliament resolution of 10 March 2022 on the rule of law and the consequences of the ECJ ruling

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José Manuel Fernandes (Member of the European Parliament)
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The principle of the rule of law is not just one among other basic principles of our democracy. It is more than that: it is a sine qua non condition for the recognition of all other fundamental rights. There is no effective freedom of speech, of association, of conscience, among others, in a community that is not governed by law. Where there is no “rule of law”, there is arbitrariness and lack of security. In such conditions, there is no freedom.

When the “rule of law” is abandoned, explicitly or implicitly, we embark on a path that leads from civility to barbarism, from equality before the law, to the rule of the strongest; from the liberal democratic system built and perfected over the last decades, to alternative, authoritarian regimes that restrict freedoms. Whoever foregoes the “rule of law” necessarily foregoes the fundamental principles on which the Portuguese constitutional order and the European Union Treaties are founded (see art. 2 TEU). Therefore, respect for the rule of law is not an option but an obligation in order to be eligible to be a member of the European Union.

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Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

On By officialblogunioIn Essays2 Comments 
Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

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The relevance of judicial institutions in upholding the Rule of Law

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Gonçalo Martins de Matos (Master’s student in Judiciary Law at University of Minho)
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Between the 15th and the 16th of February 2022, two landmark decisions were issued by two distinct courts: one regarding EU law, by the Court of Justice of the European Union (CJEU), and the other regarding Portuguese law, by the Portuguese Constitutional Court. We shall look at both of them and analyse what they introduce (or establish) regarding the defence of the Rule of Law.

We shall start with the CJEU’s decision. On 16 February 2022, the CJEU rendered its judgment in Cases C-156/21 Hungary v. Parliament and Council and C-157/21 Poland v. Parliament and Council. Both Cases emerged from two actions for annulment brought by the Republic of Poland and Hungary concerning Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget[1]. This Regulation adopted several provisions linking access to EU funding and the respect for the Rule of Law, with a view to “protect the EU budget from financial risks linked to generalised deficiencies as regards the rule of law in the Member States”[2].

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Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law

On By officialblogunioIn Essays1 Comment 
Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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The saga of requests for preliminary rulings by Romanian courts on the rule of law and the independence of judges continues, although, under pressure from the Romanian Constitutional Court’s decisions, ordinary judges have begun to refuse to apply European Union law. Failure to comply with the decisions of the Constitutional Court constitutes a disciplinary violation, a legislative solution that allows total disregard of the decisions of the Court of Justice of the European Union, for fear of disciplinary action. A climate of fear among judges was created by disciplinary actions initiated without any reservations by the Judicial Inspection against the judge of the Pitești Court of Appeal who dared to apply the CJEU decision of 18 May 2021, but also the judges who proposed and/or referred to the CJEU in this case.

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The national judge as judge of the Union (a view of the Judges’ Forum 2021 – CJEU)

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Irene das Neves (Appeal Court Judge of the Northern Administrative Central Court - Tax Litigation Section), Dora Lucas Neto (Appeal Court Judge of the Southern Administrative Central Court - Administrative Litigation Section), and Isabel Silva (Judge of the Administrative and Fiscal Court of Braga - Tax Litigation)
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The reference for a preliminary ruling, provided for in Article 19(3)(b) of the Treaty on European Union (TEU) and Article 267 of the Treaty on the Functioning of the European Union (TFEU), is a fundamental mechanism of EU law.[1] It is an “incident” within national proceedings that obliges the national judge to stay the proceedings because it is faced with the need to obtain a “preliminary” ruling from the Court of Justice of the European Union (CJEU) on the interpretation of EU law or the validity of the acts of its bodies, institutions or agencies, with a view to the proper administration of justice within the EU. To that extent, the national courts playing the role of guardians of EU law, ensuring the effective and homogenous application of the law, and seeking to avoid divergent interpretations by the various courts of the Member States.

It was on this theme of the reference, focused on the reference for the interpretation of EU law, that the President of the CJEU, Koen Lenaerts, opened the 2021 Judges’ Forum, which was held at the CJEU from 21 to 23 November and brought together judges from the courts of first instance and the appeal courts of the Member States, recalling that the reference for a preliminary ruling is an instrument of judicial cooperation by means of which the national judge and the EU judge are called upon, within the scope of their respective powers, to contribute to a decision ensuring the uniform application of EU law by the Member States.

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Editorial of October 2021

On By officialblogunioIn EditorialsLeave a comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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Strange times and the need to remember the obvious…on the recent decision of the Polish Constitutional Court

The recent judgment of the Polish Constitutional Court calls into question one of the base pillars of the European legal order – namely the primacy of EU law over national law. As a result, it is likely that the European Commission will bring infringement proceedings against Poland. If the CJEU finds that Poland has not complied with its judgment, it may impose a financial penalty.

However, there is a possibility for de-escalation which would allow for this imbroglio to be first be resolved politically. This was the case regarding the German Constitutional Court’s astonishing decision of 5 May 2020, concerning the ECB’s bond buying programme for purchasing Member States’ public debt on the secondary market. The crux of the matter was that the German Constitutional Court’s judgment followed a judgment by CJEU which settled the issue of the validity of the ECB’s bond buying programme. The German Constitutional Court in its decision disregarded the decision of the competent court under Article 19(1) TEU, according to which the CJEU ensures that the law is observed in the interpretation and application of EU treaties. It did not take long for the so-called “illiberal democracies” in Europe to welcome the ruling of the German Constitutional Court, using it to subvert judicial independence and freedom of expression as recognised by the EU. Fortunately, the good sense of the German governmental and parliamentary authorities under Angela Merkel’s leadership prevailed – and the European institutions did not have to act accordingly (at least immediately). It is important to note that in a second decision regarding the ECB’s bond buying programme also appeared to walk back from the edge of the cliff.

In any case, such episodes recommend revisiting the elementary notions of European integration law, because there are occasions when certain civilisational achievements still need to be defended, and the reason behind some choices needs to be recalled. What functional reason justifies the primacy of Union law over national law? Does Union law take precedence over national constitutional norms (or, on the contrary, can it be declared unconstitutional or set aside on the grounds of alleged unconstitutionality)?

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