UNIO – EU Law Journal

Editorial

2024-12-20

Can money buy rule of law? – overview of the recent instruments within the EU conditionality policy

Leposava Ognjanoska — 2024-12-03

In recent years, the EU has been engaged in developing its rule of law toolbox to reverse the ongoing trend of backsliding. The aim of this paper is to explore the effectiveness of the rule of law conditionality instruments which contain a certain budgetary dimension. The link between financial tools and rule of law breaches is set out in Regulation 2020/2092. Hence, this solution also strives to limit the possibilities for such illiberal and corrupt practices to be (indirectly) supported by the EU funds. This contribution analyses the added value of the regulation in defining the rule of law as the Union’s founding value, and its efforts to bring EU values enforcement under the aegis of EU law. Starting from the premise that, unlike other instruments, budgetary conditionality moves from the realm of values to the less abstract realm of money, this paper explores the potential for integrating this concept into enlargement policy. Given the EU is strongly attempting to change its approach in transforming the candidate countries, one way to inspire some real reforms on the ground is to connect the fulfillment of rule of law standards with the access to pre-accession funds. Special focus is put on the Western Balkans in the light of the new geopolitical urgency to revive the EU enlargement.

(Neo-)fascisms and the “fabrication of negative alterities”: contributions to the updating of the constitutional prohibition of fascist organisations in light of the structuring principles of the Portuguese legal system

Ricardo Silva — 2024-12-18

This article will aim to explore the new far-right movements following the prohibition of organisations that follow the fascist ideology that the Portuguese Constitution outlaws, based on a characteristic that we will argue is common to the far-right and, a fortiori, to fascisms throughout their existence. That is the discrimination and persecution of people belonging to social groups with a history of oppression due to characteristics that make up their identities – we will call them identity minorities. First of all, we will try to analyse the relationship between the new far-right movements and the classical fascisms, to which the aforementioned prohibition is mainly associated. Having established this connection, we will seek to base our point of view on the incompatibility between the contemporary far-right and the founding principles of the Portuguese legal system and of the process of European integration, not ignoring, with the support of the works of Jorge Reis Novais, Charles Taylor, Emmanuel Levinas and Paul Ricœur, the demand for respect for the otherness of the Other that guides those two political and legal projects.

The Italy–Albania Protocol on migration management: between new schemes of asylum externalisation and risks of systematic violations

Valentina Faggiani — 2024-12-03

The present contribution analyses the Italy-Albania Protocol, adopted in Rome on 6 November 2023 and ratified by Italian Law no. 14 of 21 February 2024. The Protocol provides for the creation of reception and repatriation centres for migrants on Albanian soil, financed and managed by Italy. In this way, the Italian government intends to develop a new model for managing migratory flows. The idea, which has a logic of extrema ratio, has some original elements. As it did in the Memorandum of Understanding with Libya, Italy is not delegating responsibility for controlling flows and returning migrants to their country of origin. But it does take on the management of all the phases and extends the jurisdiction and the cost that this entails. However, the originality of this scheme clashes with the difficulty of striking a balance with fundamental rights, which are systematically violated in the context of the deterritorialisation of migration policy, and with the difficulty of reducing migratory flows and therefore achieving the objective and the excessive costs associated with it.

Energy Taxation Directive: studies on the taxation of energy products for “reasons of environmental policy” in European Union law – commentary on the Endesa Generación Judgment

Nataly Machado — 2024-12-03

Since the Energy Taxation Directive came into force in 2003, the Court of Justice of the European Union has yet to rule on the conditions under which a tax on energy products used to produce electricity can be considered to be levied “for reasons of environmental policy”. With reference to the particularities of European Union tax law, in particular the prerogatives of the Member States in the field of taxation, this article aims to explore the case law of the CJEU, especially the content of the Endesa Generación Judgment, and to contextualise it both, in light of European Union law and in regard to the close correlation between the application of the tax policies of the Member States and the environmental protection policies of European Union law.

Mapping the values of digital constitutionalism: guiding posts for digital Europe?

Miguel Pereira — 2024-12-03

Since its development, the face of the internet has changed drastically, both in terms of the technology employed, the number of users, the impact and interwovenness with the lives of people and the activities of businesses all over the world. This rapid development, while clearing the way for increased production of wealth, facilitating communication, and allowing for the creation of new economic activities, has also had indelible impacts on the day-to-day lives of ordinary citizens and of constitutional democracies. These impacts seem to result from the increased platformisation of the internet, the concentration of market power around a handful of economic operators (gatekeepers), and the wide-ranging powers these operators enjoy in setting the conditions and restrictions they see fit in their terms of service. In this context, academia has highlighted many of the issues this scenario has brought about and the concerns it raises for the protection of fundamental rights and democracy. To address such issues, two approaches appear to take centre stage: a watered-down version of the early libertarian aspirations for the internet, on one hand; and, on the opposite side, a state-centric regulatory approach. A third path seems to have formed recently, that of digital constitutionalism, which looks to translate the traditional safeguards of modern constitutionalism to the digital realm, complementing them with innovative means, in light of the specific needs created by technologies such as algorithmic techniques, profiling and artificial intelligence. In this paper, we investigate the theory of digital constitutionalism and isolate its core values with a view to lay the groundwork for future research dedicated to assessing whether EU law and policy on digital services have adhered to them.

Relevant aspects in the use of technological means in international judicial cooperation developed in the inter-American sphere

Fernando Milano — 2024-12-18

The purpose of this study is to analyse some relevant aspects of the use of technological means related to the processing, through letters rogatory (i.e., letters of request) of acts of interjurisdictional cooperation in the inter-American sphere, taking into account the impact of technology on private international law. The impact of technology is clear in one of the final topics analysed in this paper; the use of technology facilitates the provision of proper interjurisdictional assistance in a more expeditious, agile, effective manner, which at the same time protects the environment by eliminating the use of paper support. It should be noted that the pandemic produced by COVID-19 accelerated the implementation times of these new tools, which are extremely necessary, in this specific case in the inter-American space.

Digital Currencies – inevitable in a very near future all around the world

Hugo Fonseca — 2024-12-19

Digital currencies are already booming in the modern world and will be essential, particularly in geostrategic terms or in international trade. Digital assets will essentially use two different types of technology: whether they will be centralised (like the Chinese CBDC, or the digital Pataca currently being implemented in the Macau Special Administrative Region of the People’s Republic of China), or decentralised (like the various cryptocurrencies, already accessible in the Western world through numerous exchanges). This text focuses on the leading role of central bank digital currencies (CBDCs) and cryptocurrencies (as digital currencies) in the world as a whole and the leading role of digital assets in “emerging markets”, namely in various countries whose economies and financial markets are still emerging or developing, such as in Africa. Digital assets, being a CBDC or, differently, a legally private crypto like bitcoin or ethereum, for example – just to name the most popular ones around the world today – will play a decisive role in improving some economies commonly known as “emerging markets”. These are markets that still need a lot of improvement, particularly because they are related to weaker macroeconomies, where some social and economic relations are strongly and usually linked to some lack of (traditional) money (or “fiat” currencies, such as the US dollar or the euro).