The European Union II

The paper is a critical analysis of the new system of own resources of the European Union, established to address the consequences of the COVID-19 crisis. Under the Council Decision 2020/2053 of 14 December 2020, the Commission shall be, inter alia, empowered to borrow funds on capital markets on behalf of the Union. For the first time in the history there will arise considerable common budgetary commitments on the part of all member states, whose repayment will be spread over many subsequent years and will be charged to future generations of European Union citizens (the so-called Next Generation EU programme). The aforementioned changes require to be confronted with the long-term financial policy of the Union based on the balanced budget rule, resulting especially from the provisions of the Treaty on the Functioning of the European Union and the Fiscal Campact, as well as to elaborate on the limits of indebtedness of societies by their representatives who form public authorities.

The Ukrainian conflict represents a political turning point for European history and a potential constitutional moment for the EU. On the one hand, the violence of the war and the underlying great power logic call into question the post-WWII pairing peace/Europe, along with the civilian/‘normative power‘ model - on the other hand, the EU has demonstrated the ambition of ‘speaking increasingly with one voice‘ in areas as sensitive as defense, energy or migration, where a remarkable and unprecedented consensus has emerged in the past weeks. The paper aims to investigate the political and legal response to the Ukrainian crises and its transformative potential for the constitutional future of Europe. Drawing on some concrete case studies, the paper suggests that ‘more Europe‘ might indeed result from these developments, triggering a positive self-reflection within the EU in terms of values and identity.

In response to the systemic attacks to the independence of the judiciary in some EU member states, coupled with challenges to the primacy of EU law, the CJEU has operationalized the values enshrined in article 2 TEU. In particular, the Court recently held in the Conditionality judgment of 16 February 2022 that the EU “must be able to defend the common values on which the Union is founded“ within the remit of its competences. With this judgement, it is argued that the CJEU acted as a constitutional court, as it provided meaning to the concept of European constitutional identity. Among other consequences, it is possible to underline two key aspects. On the one hand, the EU constitutional identity imposes a permanent obligation on EU member states, as they must respect EU values at all times. On the other hand, it confirms that the EU is not a neutral actor in this sense, but that it must proactively ensure respect for these values.

This presentation seeks to analyze the historic decision rendered by the Portuguese Constitutional Court on July 15, 2020, regarding the relationship between European Union (EU) Law and Portugal‘s fundamental law as well as discuss its impact. In the judgment, the Court recognized its incompetence to assess the validity of an EU legal norm considering the principles enshrined in the Portuguese Constitution. This position is based upon its reading of Article 8 section 4 of the Constitution which points towards the application of the principles of direct effect and the primacy of the EU law in the legal order of the Member States. In sum, the Court reaffirmed, with some minor reservations, the principle of the primacy of Union law over the law of the Member States, including the Constitution, as well as the exclusive competence of the CJEU to assess the validity of EU law. Furthermore, it linked this exclusive competence to the specificity, autonomy, and integrity of the EU legal order.