Surrogacy in the light of European Union law: brief considerations

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 by Diana Coutinho, Invited Assistant at the Law School of UMinho

On 22 August, 2016, Law no. 25/2016 was published, regulating the access to surrogacy and performing the fourth amendment to the Portuguese law on medically assisted procreation (Law no. 32/2006, of 26 July). Before Law no. 25/2016 comes into force, resorting to surrogacy was expressly prohibited (whether for a price or free of charge). With the aforementioned legislative amendment, access to surrogacy became possible, provided that under exceptional circumstances (namely, absence of uterus, injury or disease of this organ that absolutely and definitively prevents the woman’s pregnancy or in clinical situations that justify it), free of charge and resorting to the genetic material from at least one of the beneficiaries. However, the new law was not exempt from criticism, culminating in the judgment of the Portuguese Constitutional Court no. 225/2018 and consequent suspension of access to surrogacy. According to the Portuguese Constitutional Court, surrogacy performed under the terms of Law no. 25/2016 – with an exceptional and gratuitous nature and limited only to the cases authorized by law – does not violate the principle of human dignity (neither of the surrogate mother nor of the child), nor the State’s duty of child protection. However, the excessive indeterminacy of the law (as in the case of paragraphs 4, 10 and 11 of Article 8), the absence of the surrogate’s right to repentance (restricted to the possibility of withdrawal of the consent provided by the surrogate only until the beginning of medical assisted procreation’s therapeutic proceedings) and the failure to implement the surrogacy’s nullity regime (paragraph 12 of Article 8, since the law does not distinguish between the effects of a valid contract and a null contract) substantiate the declaration of unconstitutionality. Amendments to the regulation of the surrogacy are greatly expected, in particular the solution that the legislator will find to protect the interests of the parties involved: surrogate mother, beneficiaries and, in particular, the child.
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Editorial of December 2018

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 by Sergio Maia, Managing Editor

Multiannual financial framework, budgets and elections: is there room for convergence?

Current status of EU politics barely hides that convergence seems more and more dramatic, as the elections next May are rapidly approaching amidst uncertainty, Brexit and national populisms. Despite the signal Emmanuel Macron attempted to send recently by addressing the German Bundestag – the first French president to do so in 18 years – in favour of unity against chaos, there is little doubt that the moment is of euro-tension, somewhat of pre-storm. Italy is (literally) stepping on the European Commission’s budgetary recommendations; Brexit withdrawal agreement conclusion is an incognita on the British side (there is also the preliminary reference on its revocability under appreciation in CJEU); Steve Bannon is trying to fund extremist right-wing candidates for the European Parliament election; Poland is disguising its real commitment to implement CJEU interim measures; new migration rules are not settled, etc.

On top of that, there is an ongoing negotiation for the next multiannual financial framework (MFF) and in parallel proposals for a Eurozone specific budget as of 2021 – which was the underlying pretext for Macron’s speech at the Bundestag. The original idea of the French president was to equip the Eurozone with a separate budget to assist Member States experiencing instabilities in their economies. In other words, it would serve as a sort of debt mutualisation guarantee in critical times. This was only insidiously mentioned in the Meseberg Declaration, but it was mentioned nevertheless. The motivation for this tool was to provide an enhancement of the general balance between European economies so that the different levels of development in the EMU could be compensated for the benefit of Euro (stabilisation, prices) and trade flow in the internal market.
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Amending social security coordination – challenges of the Regulations (EC) No. 883/2004 and No. 987/2009

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

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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Editorial of January 2018

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by Sergio Maia, Managing Editor


The European Pillar of Social Rights has taken the first steps – and now how far will it make the Union walk?

One year after the end of the public consultation period of the European Pillar of Social Rights (EPSR) that preceded its formal presentation and adoption, it is an inviting, seemingly appropriate time to remark its concrete meanings and consequences. The EPSR and its political and legislative initiatives (such as the adoption of a clarification of the Working Time Directive or the proposals for a Directive on Work-Life Balance and for a Directive on Transparent and Predictable Working Conditions) have started to redesign the materialisation of the social model underlying the public reason of the Union. Those public reason and social model are embedded in Article 3(3), TEU; Article 9, Article 151, TFEU, just to name a few.

According to that set of rules, the Union is bound to full employment, social progress, the fight against exclusion, the promotion of social justice, social protection and cohesion. To sum up, in other words, there exists, I believe, a social democratization rationale behind the objectives of the integration to which the exercise and the enjoyment of citizenship rights and fundamental rights protection are directly associated. This social democratization drives (and must do so) the fulfilment of the economic freedoms as well as the rights enshrined in the CFREU. Without social democratization, the European citizenship and its fundamental rights are worth very little. The case-law of the CJEU in Dano, Alimanovic and Commission v. UK proves just that.

The two aforementioned spindles are in the core of the Union based on the rule of law as the fruition of those rights – i.e., social model – shapes the purposes of the public reason of the European polity. Then, how does the Pillar promote the European social model?

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EU Citizenship and Protection of Social Rights in the Court of Justice case-law

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by Cinzia Peraro, PhD student in European Union Law at the University of Verona

1. Introduction

This post aims at analysing the fundamental freedom of movement of workers and the protection of social rights in light of the recent EU Court of Justice case-law. The arising question is whether fundamental social rights may assume the same hierarchical level as general principles when a balancing test is exercised within the assessment of compatibility of national measures with EU law.

The definition of EU citizenship and the codification of rights granted to EU citizens are covered by the Treaties, namely by Article 9 TEU, Article 18 ff. TFEU and Chapter V of the EU Charter of Fundamental Rights. EU citizens can freely move across the Union in order to work or look for a job or establish their place of work in one Member State different from the one of origin, where they can enjoy the rights granted by the EU. Indeed, EU citizenship creates rights upon EU citizens and therefore could be defined as a “comunidade de direitos”[i].

Nowadays, the free movement of citizens became a core issue within the debates on present threats and challenges that the EU is facing, amongst which the EU immigration policy that is not only linked to the free movement of persons, but also to the underlying process of integration. In general, a more positive approach should be welcomed when addressing current issues.

2. Free movement of workers

Originally, the four fundamental freedoms were established with the aim of increasing and developing the European internal market and workers were granted rights abroad. The Union offered workers the possibility to move across Member States in order to provide their services or capabilities or establish their place of work. Then, the personal dimension was considered and individual rights were recognised, such as the right to family reunification. Thus, the free movement of workers should not be seen in macroeconomic terms, that is to say linked to the development of the internal market, but rather as a personal freedom to choose the country in which citizens want to work.[ii]

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On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?

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by Professor Alessandra Silveira, Editor

The CJEU over the years has helped forging a concept of citizenship directed to be the “fundamental status of Member States nationals”. However, since the ruling Dereci of 2011, the proactivity of the CJEU concerning the development of the European citizenship seemed to have gradually exhausted its potentialities, mostly on the so-called social citizenship. It happens, tough, that the crucial moment the European Union faces demands the enhancement of its vertical relation with the citizens it upholds – it is either this or fragmentation. And maybe this is the subliminal message from the CJEU in three post-Brexit rulings that, decided in the Grand Chamber, surprisingly recover and develop the most emblematic case-law about the European citizenship – namely the Rottmann[i] and Zambrano[ii] rulings – whose political potential and/or identity potential seemed irrevocably muzzled.

In the ruling Rendón Marín[iii] and CS[iv], the core issue involved the expulsion and the automatic refusal of the concession of residence to third states nationals who have a dependent minor European citizen – in  both cases due to the parent’s criminal records. The CJEU recovered the Zambrano assertion, according to which Article 20, TFEU precludes national provisions that have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union[v] and, in this sense, it must be attributed the derived right of residence to the national from a third State, under this risk of the useful effect of the European citizenship being affected, if the minor is forced to leave the territory of the Union to follow his/her parent[vi]. In both rulings, the novelty is the way the CJEU appreciates, in the light of the fundamental rights of the European citizen, the possibility of a Member State to introduce limits to such derived right of residence which arises from Article 20, TFEU.

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Subsidiarity, democratic deficit and posting of workers

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by Professor Alessandra Silveira, Editor

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

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.