Summaries of judgments: J & S Service | VL v Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie

On February 22, 2021February 22, 2021 By officialblogunioIn Summaries of judgmentsLeave a comment

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 (First Chamber) of 10 December 2020, J & S Service, Case C-620/19, EU:C:2020:1011.

Reference for a preliminary ruling – Personal data – Regulation (UE) 2016/679 – Article 23 – Restrictions – Important financial interest – Enforcement of civil law claims – National regulation referring to provisions of Union law – Tax data relating to legal persons – Incompetence of the Court

Facts

The dispute in the main proceedings opposes the Land Nordrhein‑Westfalen to D.‑H. T., acting as trustee in bankruptcy for J & S Service UG, in connection with a request for obtaining tax data concerning this company.

The tax administration having rejected this request, D.-H. T. appealed to the competent Verwaltungsgericht, which essentially upheld his appeal. The competent Oberverwaltungsgericht dismissed the appeal lodged by the Land Nordrhein-Westfalen against the judgment at first instance. This court considered in particular that the right of access to information, exercised on the basis of the law on freedom of information, was not precluded by existing specific rules in tax matters. Therefore, although the information requested was covered by tax secrecy, D.-H. T. was entitled, in his capacity as trustee in bankruptcy, to ask J & S Service for any information relating to the insolvency proceedings. The Land Nordrhein-Westfalen appealed against this decision to the Bundesverwaltungsgericht.

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Portuguese Labour Law in times of Covid19: some aspects

On April 6, 2020April 4, 2020 By officialblogunioIn CommentsLeave a comment

 by Teresa Coelho Moreira, Professor of Labour Law, University of Minho

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The world is facing an unprecedented pandemic crisis with global effects and that already reached almost all countries in the world. This situation has reflected in all areas but we are going to analyse some aspects related with Labour Law, and what Portugal is doing to face this situation.

Recently on 23 March, the ILO issued a paper entitled ILO Standards and COVID-19 (coronavirus) and emphasized that the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) on the Preamble and Paragraphs 7, b and 43, establishes that “crisis responses need to ensure respect for all human rights and the rule of law, including respect for fundamental principles and rights at work and for international labour standards”.

Today, we are living a truly tsunami in terms of economic crisis with this virus and no one knows when and if it is going to stop and how the world is going to be. However, one thing is sure. We are going to face a huge economic crisis with reflection in the world of work. Millions of people around the world are going to be unemployed. According with the ILO we can have “a rise in global unemployment of between 5.3 million (“low” scenario) and 24.7 million (“high” scenario) from a base level of 188 million in 2019. By comparison, the 2008-9 global financial crisis increased global unemployment by 22 million”[i]. With this scenario, falls in employment also mean large income losses for workers that translate into falls in consumption of goods and services, in turn affecting the prospects for businesses and economies.
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Amending social security coordination – challenges of the Regulations (EC) No. 883/2004 and No. 987/2009

On May 18, 2018May 2, 2018 By officialblogunioIn EssaysLeave a comment

 by Joel Lacerda Azevedo, master in EU Law at University of Minho

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Ensuring the right to social security when exercising the right of free movement has been a major concern of the Member States in the EU. In order to achieve this, it was necessary to adopt social security measures which prevent Union citizens who work or reside in a Member State other than their own from losing all or part of their social security rights, thereby contributing to the improvement of their quality of life.

The EU provisions on social security coordination do not replace national social security systems with a single European system, such harmonization would not be possible since the social security systems of a Member State are the result of long-standing traditions deeply rooted in the culture and national preferences[i]. Consequently, instead of harmonizing social security systems, EU provisions provide for their coordination. Each Member State is free to decide who is a beneficiary under its legislation, what benefits are granted and on what conditions, how those benefits are calculated and what contributions are to be paid[ii].

In order to grant EU citizens the social and health benefits to which they are entitled, coordination between the social security systems of the Member States is necessary. However, the current Regulations (EC) Nº 883/2004[iii] and (EC) Nº 987/2009[iv] no longer reflect the changing national social security systems and the case law of the European Court of Justice.
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Subsidiarity, democratic deficit and posting of workers

On June 10, 2016June 10, 2016 By officialblogunioIn CommentsLeave a comment

by Professor Alessandra Silveira, Editor

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The Lisbon Treaty introduced new contents to the role of national parliaments in the EU decision making process alongside the respect for the principle of subsidiarity by the European institutions. According to article 5, No. 3, TEU under the scope of non-exclusive competences, the Union only intervenes if the objectives of certain action (i) cannot be sufficiently achieved by Member States (efficiency criterion) and (ii) can be better achieved by the EU due to its dimension or intended effects (added value criterion).

So, since the entry into force of the Lisbon Treaty, Protocols No. 1 and No. 2 annexed to the treaties allow that national parliaments evaluate the compliance of the European draft legislative acts with the principle of subsidiarity – and if they conclude that there is incompliance, the respective reasoned opinion shall address this understanding. Under the ordinary legislative procedure, if the reasoned opinions represent at least a simple majority of the votes allocated to the national parliaments, the European Commission proposal must be reviewed. It can be amended, withdrawn or sustained (Article 7, No. 3, Protocol No. 2).

Nevertheless, it is important to test the national parliament’s arguments in order to confirm if (i) they have legal grounds to claim the infringement of subsidiarity and (ii) the result of such parliamentary intervention can be regarded as positive to the EU legal system as a whole. Even though this proposed exercise does not compromise, theoretically, the democratic relevance of national parliament’s participation in the EU’s decision making process, it can point out some fragilities concerning (i) the appreciation of the European integration process by national parliamentary authorities and (ii) the adequacy of the EU democratic deficit narrative and the instruments created so far to face it.

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National Parliaments’ yellow card to posted workers reform

On June 10, 2016June 10, 2016 By officialblogunioIn NewsLeave a comment

Social rights are at the core of current debates on the EU, from budgetary deficit limits to mechanisms fighting unemployment, passing by the “Brexit/Bremain” referendum.

Recently, some national parliaments have expressed their opinions about one relevant aspect to the social model of the EU, the posted workers’ rights which may undergo a revision after the Commission issued a proposal.

Here is a sample of how the parliaments consider the matter.

“Eleven EU member states have shown a yellow card to the European Commission over its recent proposal to warrant equal pay to posted workers“, via euobserver.

“According to several European diplomats, the national parliaments of 11 countries, including Poland, Denmark, the Czech Republic and Slovakia, have enough votes under EU rules to trigger the “yellow card” procedure against the Commission’s revised new text on so-called “posted workers. It would be only the third time the yellow card procedure has been used since it was set up under the Treaty of Lisbon“, via politico.eu.

“An attempt by the European Commission to revise the contentious Posted Workers directive is likely to fail, as the national parliaments of at least ten member states from Central and Eastern Europe are reported have used a yellow card to stop the legislation“, via euractiv.

A realpolitik, inside view of the Social Security negotiations in the EU on “Brexit”

On May 4, 2016May 6, 2016 By officialblogunioIn CommentsLeave a comment

by Elisabete Silveira, Director of Negotiation and Coordination of International Instruments Unit of Directorate-General of Social Security in Portugal

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After long and difficult discussions, the Heads of State or Government, meeting within the European Council of 18-19 February 2016, adopted a Decision concerning a New Settlement for the United Kingdom within the European Union.

It will become effective on the date the United Kingdom informs the Council about its decision to remain a member of the EU and will require secondary legislation which the Commission will only propose after a successful referendum. Should the result of the referendum in the UK be for it to leave the EU, the set of arrangements agreed by the European Council will cease to exist.

The Decision covers four sections: Economic Governance, Competitiveness, Sovereignty and Social Benefits and Free Movement.

Focusing only on the last section, it should be noted that, following the taking effect of the Decision, the Commission will submit proposals for amending two important Regulations: Regulation (EC) N.º 883/2004 on coordination of social security schemes and Regulation (EU) N.º 492/2011 on freedom of movement for workers within the EU.

The amendment of Regulation (EC) N.º 883/2004 is intended to give Member States, as regards the “exportation of child benefits to a Member State other than that where the worker resides, an option to index such benefits to the conditions of the Member State where the child resides. This should apply only to new claims made by EU workers in the host Member State. However, as from 1 January 2020, all Member States may extend indexation to existing claims to child benefits already exported by EU workers. The Commission does not intend to propose that the future system of optional indexation of child benefits be extended to other types of exportable benefits, such as old-age pensions.”

These arrangements raise many doubts and perplexities.

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Summary of Francovich – 6/90

On March 14, 2016March 14, 2016 By officialblogunioIn Summaries of judgmentsLeave a comment

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

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Keywords: social policy; liability; directive implementation; failure to fulfil an obligation; compensation.

Court: CJEU | Date: Nov. 19th 1991 | Case: 6/90 | Applicants: Andrea Francovich vs Italian Republic

Summary: The Directive 80/897 goal was to assure a minimum protection for all European workers in case of bankruptcy of a company. For this purpose, it predicted specific guarantees for the payment of claims relating to debt remuneration. Italian Government didn’t implement the mentioned policy in time. Mr Francovich and Mrs Bonifaci filed in court arguing that it was the Italian Government’s obligation to implement the Directive 80/897 and so they claimed a state compensation. The national court suspended the case and referred the following questions to CJEU:

“Under the system of Community law in force, is a private individual who has been adversely affected by the failure of a Member State to implement Directive 80/897 — a failure confirmed by a judgment of the Court of Justice — entitled to require the State itself to give effect to those provisions of that directive which are sufficiently precise and unconditional, by directly invoking the Community legislation against the Member State in default so as to obtain the guarantees which that State itself should have provided and in any event to claim reparation of the loss and damage sustained in relation to provisions to which that right does not apply?”

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