Nº7 FEBRUARY 29
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José Luís da Cruz Vilaça An interview about life, law and European integration PAGE
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Nº7 · FEBRUARY 29, 2020
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Interview with José Luís da Cruz Vilaça Former Advocate General and Judge at the Court of Justice and former President of the Court of First Instance
By Daniel Sarmiento
In the history of EU law, no other person can show credentials like José Luís da Cruz Vilaça. He is the only person to have ever held the position of President of the EU’s lower court, Advocate General and Judge of the Court of Justice. At the same time, his life is a remarkable story of commitment to his country and to European integration. As a member of the Portuguese Government during the negotiations leading to Portuguese accession, he witnessed rst-hand how his country had transited from a mili-
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tary dictatorship into a mature and modern democracy. In this interview, EU Law Live met with José Luís da Cruz Vilaça to talk about his formative years, his time in the Portuguese Navy and his experience of the Portuguese accession process sitting at the helm of the negotiating team. He also reects on the inuences that shaped his mind and his professional prole: the impact of his training in economics, his rst experiences in institution-
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building in the Navy and the shock of dramatic experiences during his time in politics. In EU Law Live’s Podcast Series we will shortly provide our readers with the second part of this interview, covering his time at the Court of Justice and the Court of First Instance, but also his tenure as prestigious lawyer in Lisbon, followed by his return to the Court of Justice as Judge.
Nº7 · FEBRUARY 29, 2020
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We were of course criticised widely for our regime and for our colonial choices. But that forced us, the young people of that time, to look abroad. Not only to Europe, but also, being a maritime country, to look to the ocean and the rest of the world. That's probably how I fashioned my preference for international affairs.
Daniel Sarmiento: Professor da Cruz Vilaça, can you tell us a little bit about your background? Do you come from a family of lawyers? Was there a particular interest in the law and international affairs in the environment in which you were raised? Not really. There are very few lawyers in my family. I remember only my uncle, my father’s brother, who was not practising as a lawyer, but was a jurist. He was trained at the law faculty of Coimbra. And that might have inuenced my decision to go to Coimbra University. My father would have liked to be a lawyer. In fact, I think he would have been a very gifted lawyer. But he decided to stay in Braga in the end, where I was born and where he ran a prestigious bookshop which was the family business. My father was an editor and worked with the University of Braga very often. It was a Catholic university which was founded by the Jesuits in Braga, which had an important Faculty of Philosophy. And so, in my early years I lived in a world of books. There were plenty of novels and literature, but mainly they were non-ctional books, on philosophy and other subjects. So, I cannot tell you when I started thinking of devoting myself to the law, but it was quite a natural option for me when I decided to go to Coimbra to start my legal studies.
I guess that this combination of the world of books and being an internationallyminded young law student drove you quite naturally towards European integration and European law. I must say that I started studying European integration mostly from an economic perspective, and not from a legal one. I was not a European lawyer at the beginning. I became a European lawyer and I am happy that it happened that way. I eventually discovered European integration and the European Community when I moved to Paris to prepare my doctorate, my thesis in 1975, right after the revolution which brought the Salazar regime to an end. And I went to Paris to study international economics where I defended my PhD in international economics. And that's when I discovered the European phenomenon and integration and started studying it from different perspectives: economic, legal and political points of view. So, I have always been rather eclectic in my approach to European integration.
As regards international affairs, I think my interest in that domain has to do with the peculiar position of Portugal in the world at that time. We had a conservative and authoritarian regime that tried to stop any break-up of the country with its past. That is why we fought a colonial war for 14 years. And I myself was in the Portuguese navy as a justice ofcer. That meant that our life in Portugal was very much inuenced by the international environment.
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What had a more relevant inuence over your professional decisions to become a professional in the eld of international, mostly European law: your background in economics? Or the political changes that were taking place in your country? Maybe both, but the political circumstances
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years, which is quite some time. That was between 1969 and 1972.
probably played a more important role. And in the end, I am essentially a lawyer. My mind is law-oriented: that's what the Law Faculty of Coimbra gave me - a very laworiented mind, with everything that it implies. My trajectory towards European integration was quite natural. I never had to make a U-turn to switch suddenly from one perspective to another.
The navy was a very good characterbuilding school. My character was shaped by those years in the navy, including the legal service. For some time, I was the legal expert, the head of the service and the secretariat general of the service, all at once.
The fact that I studied economics, international economics, but also basic economics, oriented me naturally to the eld of competition law. This was a great discovery. It was the best way for a lawyer to understand how markets work, the structure of markets, the differences between markets, and how the market forces function. Of course, this helped me a lot when studying competition law, and it still helps me when I have to act in the eld of competition law as a lawyer. It's one of the most fascinating elds within the great eld of European and international law.
It was also my rst institution-building experience, because at that time the legal service of the navy in Lisbon concentrated all legal issues, including disciplinary matters and other legal matters. And the majority of the staff, the soldiers, ofcers in the navy, like in the other branches of the army, were not stationed in Lisbon, but José Luís da Cruz Vilaça during his time in Angola, Mozambique, in the navy from 1969 to 1972 Guinea, Cape Verde, etc. At that time, I proposed to set The navy is still very up the same justice service close to me and I am and the same legal support for the navy in all territories. very proud of it. Otherwise it would have been impossible to cope with such a territorial dispersion, a situation that caused enormous problems in terms of procedural rights. In a And how about your time at the navy? certain way, I can say that I made a contribuYou already mentioned your passage tion to strengthen the rule of law within the through the navy, as a justice ofcer in the Portuguese Navy, and I have always been navy, as you said before. Did it have an imvery proud of it. pact on your development as a lawyer? If I may add something, I think that my experience in the navy is still very present in my life, because now, as the Chairman of the General Assembly of the Association of the of-
It was a very positive experience. At a certain point in time I had to make a choice between the army or the navy, so I chose the navy as a volunteer. I stayed there for three
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crash in December of that year. That was during the electoral campaign for the Presidency of the Republic, and I was a member of the political council of the candidate for most of that time. I was with him during the whole campaign and I ew in the same plane with him just before the crash. I did the last full ight on that plane, which crashed with Sá Carneiro the next evening.
cers of the navy reserve, I continue to enjoy very good relationships with the highest ranks in the navy, including the admiral Navy Chief of Staff. In 1980, after you nished your doctorate in Paris, and after the start of an academic career, you took the step of entering Portuguese politics. In that year you joined the Portuguese Government and you would eventually take on major responsibilities in the negotiations of Portuguese accession to the European Communities. What are your recollections of those years of Portuguese pre-accession? My political experience was very stimulating, because I had the chance to participate in three different roles within government. First, as Secretary of State for Home Affairs, I was in charge of what you could now call the reform of the State, including the preparatory works for the rst constitutional amendments in Portugal, but also electoral laws, the structure of local government, etc. It lasted for 10 months, as nally, in 1980, the rst democratic alliance government led by Sá Carneiro ended when he died in a plane
José Luís da Cruz Vilaça when he was Secretary of State of the President of the Council of Ministers in 1981
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Some issues were difcult to agree upon. For instance, the free movement of workers. For Portugal it was very important to open the labour market in Europe as soon as possible, but we had to accept a transitional period of seven years for the whole of the EEC with the exception of Luxembourg, due to the fears of the Luxembourg negotiators that the ow of Portuguese migrants could disrupt the country’s labour market. We tried to argue that it would not be the case, but they were not convinced. Finally, our accession agreement contained a ‘Luxembourg clause’ with a 10 year transition for the free movement of workers to take effect. But nally, I think that three years after our accession, the Luxembourg government (with Jean Claude Juncker and Jacques Santer as Ministers at that time) recognised that the clause for the full period was unnecessary and they brought it down. In the end we were proven right, but we didn’t succeed in convincing them during the negotiations.
My second position in Government was as Secretary of State for the Council of Ministers, and lastly I was appointed Secretary of State for European Integration, a position in which I led the negotiations for Portuguese accession for one year. By that time my ‘European choice’ was made. I agreed to be Secretary of State in charge of the Portuguese negotiations with the EEC, to help lead the process of joining the EEC at that time. In fact, we closed the rst package of subjects under negotiation in January 1981. But of course, it was not a nal agreement, everything was open until everything was agreed. It was a very demanding period and I had no particular experience in international negotiations. Also, the negotiations were managed in a rather peculiar way because they relied mainly on the exchange of documents for each chapter of the negotiations. The meetings were rare and only intended to formalise the agreements. Sometimes there were real negotiations and genuine debates, and at times even some delicate and sensitive issues, for instance on agriculture. Agriculture was one of the last issues we negotiated in the last period of my term as Secretary of State, but then the government fell and the negotiations were then put in the hands of others.
What was the perspective of European accession for Portugal, because being Spanish myself, I know that for my country, European accession was part of the democratic transition in a certain way, it was a part of the package and I think that conditioned the vision of what European accession was for Spaniards a lot. Was there something similar in Portugal? Was it also seen as part of the package of a transition for democracy, and therefore that there was already a strong political, and not only economic, intention in joining the Communities?
For Portugal, accession was the way to strengthen our democratic institutions.
Yes, that’s true. Let me make two points. First, Spain was one of the crucial points in
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government in power and the inuence of the Soviet Union at the time was quite signicant. This was taking place at a time in which the struggle between the world powers was at its peak.
our negotiations for accession, because the Portuguese government, and each Portuguese government in charge of negotiations, made a strong point in demanding a complete separation of the Spanish negotiations and our process of accession. There was a fear that Spain, being a big country with an already strong economy, would pose difculties to our negotiations. It was very important for us to convince the EEC and its Member States that we were not to be a problem for their economies given the size of our economy. So, we always kept the two processes separated.
We had the support of the United States, particularly of Frank Carlucci, the US Ambassador in Portugal, who very much supported the democratic forces in Portugal. But at the same time the Soviet government had a strategic goal to achieve, particularly in its efforts to control the process of independence of the former Portuguese colonies: in particular, Angola and Mozambique. They succeeded at the time and managed to put in place a pro-Moscow party in government. But the Americans very much supported us, even if the US Secretary of State of the time, Henry Kissinger, considered Portugal as the ‘vaccine’ for Europe. He argued that Europe should see what a communist government can do, and Portugal would have been the victim to show Europeans not to choose that path.
I have never been completely sure that this was the best choice. We probably could have joined forces on some issues. But it was the political choice of the government. As a result of this decision, I never met my Spanish counterparts during the negotiations - because it was the political line not to - and it was a pity. I am sorry that it had to work out that way, but that is how it was arranged. And in the end, we joined the EEC on the same day.
We risked being a laboratory, but fortunately in the end we avoided it.
As regards the political dimension of Portuguese accession, my answer is a straightforward yes. For Portugal, accession was the way to strengthen our democratic institutions. It was very important to be recognised as a member of a community of European democracies and not only of the European Economic Community. It was a clear choice to join the EEC for political reasons. We were a committed Western European country and we didn't want to become anything else.
What do you think of European integration in Portugal today? How do you view the approach of young people towards Europe, compared to the days of early accession? It is completely different. First of all, we have been members for more than 30 years. European integration has become natural for Portugal. Of course, there were enormous problems during the nancial crisis and as a result of the austerity policies. The country
I would highlight that in Portugal, in 1975, right after the revolution, had a communist
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I am not saying that we have created some kind of European patriotism, but I believe that it is possible to create the conditions for European patriotism to work without replacing national identities. Ideally, each European citizen, while belonging to his or her country, would feel a sense of being part of a larger community of destiny. I think that this sense of belonging to Portugal and to Europe is widely spread in my country at this time.
and the people suffered a lot. But the situation is completely different and the feeling of being European is very strong in Portugal. When I was negotiating the accession, one of the main difculties we faced was Portugal’s degree of development and the structure of the Portuguese economy. There were doubts as to whether the country was prepared, in matters such as technical and scientic training. Our economy in the early 80s was very much behind, it was a backward and weak economy. We didn't have a diversied economy, so the country had to go through a very intense process of transformation while not being fully prepared for the task. The situation now is completely different. Portugal has a large community of highly trained people. Many of them are working in Portugal and others are abroad, in the US, in the UK or in the EU. I would say that the Portuguese people have become fully integrated in their sense of being European. And furthermore, we have not yet seen eurosceptic political movements promoting withdrawal from the EU - there are no real eurosceptics in Portugal.
At one time we looked at Europe as something very distant, but now it’s part of our collective identity.
My family is an example of this change. Half of my children live in another continent, in South America and North America, and they feel fully European. I myself became even more European. My wife is German. My youngest daughter is German and Portuguese and her family is also Swiss. There is now a strong link between the peoples in Europe, and that is very important when creating common frames of mind. People have good reasons to feel European, and in Portugal I believe they do.
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News Highlights 24-28 February 2020 Jehovah’s Witnesses’ rights violated by Azerbaijan according to the ECtHR
Questions to the CJEU on the European Banking Authorities’ powers and soft law instruments Monday 24 February
Monday 24 February
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Azerbaijan has been condemned by the European Court of Human Rights for violating the rights of Jehovah’s Witnesses, in Nasirov and Others v. Azerbaijan (application no. 58717/10) by arresting Jehovah’s Witnesses who had been preaching door-to-door, and in Religious Community of Jehovah’s Witnesses v. Azerbaijan (application no. 52884/09), for imposing an import ban on several Jehovah’s Witnesses texts.
In a case on judicial review in the Banking Union, the Court of Justice of the European Union (FBF, C911/19) has been asked by the French Council of State (Conseil d’État) to clarify whether the guidelines of the European Banking Authority can be reviewed, and on standing to bring such legal proceedings.
The EU’s response to the coronavirus SARS-CoV-2 Monday 24 February
Romania has been ordered by the Commission to recover State aid from a rail freight operator
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The European Commission has issued a press release detailing how the EU is taking measures against the coronavirus outbreak, including coordinating Member States, monitoring, providing funding, conducting research, providing technical guidance, and sending emergency supplies to China, among others.
Monday 24 February
Commission study on consideration of human rights and environment through supply chains Tuesday 25 February
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The Commission has published a study on due diligence requirements in companies’ own operations and through their supply chains to identify, prevent, mitigate and account for abuses of human rights, including the rights of the child and fundamental freedoms, serious bodily injury or health risks, environmental damage, including with respect to climate.
The European Court of Human Rights found in Paixão Moreira Sá Fernandes v. Portugal (application no. 78108/14) that the Portuguese courts, which can hear points of both law and fact, had breached the right to a fair trial. Examination of the evidence before the rstinstance court was necessary in order to reassess the facts. The upper instance court failed to do so, even though Portuguese law allowed the evidence to be considered in a hearing.
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The Commission found that Romania’s public support to rail freight operator CFR Marfa created an unfair economic advantage over its competitors, and was State aid that violated the EU State aid rules. Romania must now recover that State aid from the rail freight operator.
ECtHR rules that the right to a fair trial is violated if there is a conviction at second instance without direct assessment of the evidence and relevant circumstances Tuesday 25 February
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European Commission authorised to open EU-UK negotiations Tuesday 25 February
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Council Decision 2020/266 was adopted to authorise the Commission as the main negotiator on behalf of the EU, in negotiations with the United Kingdom postBrexit. The Decision includes an Annex of negotiating directives, which is the Council’s mandate to the Commission. The rst round of negotiations will take place on Monday 2 March 2020, in Brussels.
CJEU confirms compatibility of Italian single tax on betting with the freedom to provide services Wednesday 26 February
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The Court of Justice of the European Union handed down a ruling in Stanleyparma and Stanleybet Malta (C-788/18) that the Italian single tax on betting does not breach the freedom to provide services under Article 56 TFEU, in a case concerning the principles of nondiscrimination (in tax matters) and equal treatment.
Opinion of Advocate General in case on interactions between EEA and EU law in extradition matters Thursday 27 February
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Advocate General Tanchev issued an Opinion to the Court of Justice of the EU in Ruska Federacija (C897/19 PPU), a Grand Chamber case. His advice on the interpretation of the relevant EU rules means that a Member State that gives a ruling on the extradition to a third state of a non-Member State national - a national of a Schengen Associated State, is required to inform that Schengen Associated State of the extradition request.
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Human rights and technologies in biomedicine: strategic plan supported by Council of Europe Wednesday 26 February
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The Council of Europe has supported a ve-year strategic plan to address key challenges posed by technological developments and trends in biomedical practices, in order to protect human rights and freedoms in this area.
ECtHR accepts referral to Grand Chamber in case on Article 5 ECHR rights and compulsory confinement for offences classed as theft and attempted aggravated burglary Wednesday 26 February
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Article 5 ECHR rights were invoked in Denis and Irvine v. Belgium (applications nos. 62819/17 and 63921/17) because Belgian courts refused to release applicants in compulsory connement for certain offences, whereas the national law only provided for that type of punishment for other types of offences. The case will be referred to the Grand Chamber of the ECtHR.
ECtHR: Compulsory payment for heating even if residents are disconnected violates property rights Thursday 27 February
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The European Court of Human Rights gave its ruling in in Strezovski and Others v. North Macedonia, on Macedonian rules that oblige at owners to pay a standing charge for heating in their ats to private suppliers, even if the ats are not connected to the heating network. The ECtHR ruled that there had been a breach of the applicant’s right to protection of property because the contested measure was not proportionate.
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Court of Justice rules on derived rights of residence for a third country national
Court of Justice annuls EUIPO decision that ‘Fack Ju Göhte’ could not be registered as a trademark
Friday 28 February
Friday 28 February
In a ruling delivered on Thursday 27 February 2020, Subdelegación del Gobierno en Ciudad Real, (C-836/18) the Court of Justice nds that the rights of an EU citizen should be protected if denying a residence permit to a third country national spouse would result in that EU citizen being obliged to leave the EU territory. It considers the condition of ‘sufcient resources’ imposed upon that EU citizen, and the need to examine whether there is a relationship of dependency.
In appeal case Constantin Film Produktion (C-240/18 P), the Court of Justice has set aside the relevant General Court ruling and annulled the EUIPO decision nding that registration of the mark ‘Fack Ju Göhte’ was impermissible on the grounds of principles of morality. The Court of Justice identied a number of factors that were not properly taken into account, including the differences in language sensitivities between Germanspeaking and English-speaking people, and the lack of offence caused by that specic term due to certain contexts in German-speaking countries.
British Government’s approach to EUUK negotiations
Ministers’ views at Competitiveness Council on Green Deal, Single Market and Better Regulation
Friday 28 February
The British Government has published a document setting out its negotiation approach, excluding matters of implementation of the Withdrawal Agreement. In contrast to the EU’s approach set out in Council Decision 2020/266 and its Annex, it refers to no alignment where relevant rather than a level-playing eld, and no jurisdiction for the Court of Justice in future dispute resolution.
Friday 28 February
The Council of the EU has published the main results of a Competitiveness Council, where ministers exchanged views on attaining the 2050 climate neutrality and sustainability goals, the Single Market Performance report presented by the Commission, and adopted conclusions on Better Regulation in law-making.
Council’s conclusions on Better Regulation
Broadcom starts legal proceedings against the Commission
Friday 28 February
The Council of the EU has published its conclusions on Better Regulation, including the importance of principle-based and rigorous impact assessments, an impartial regulatory scrutiny board within the Commission, and a focus on small businesses among other topics.
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Friday 28 February
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An annulment action is pending before the General Court of the CJEU (T-876/19), in which Broadcom Inc seeks the annulment of a competition decision made by a Commission Decision of 16 October 2019.
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This Week's Analyses & Op-Eds “Oh, to be in England now that Brexit’s there”: some personal literary reflections
UK Supreme Court and the Micula Arbitration and State aid Saga: Judgment [2020] UKSC 5 By Gillian Cahill
By Kieran Bradley
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Op-Ed on the case of the Micula Brothers who were granted an ICSID arbitral award against Romania, but for which enforcement was stayed due to an ongoing State aid case at the General Court of the CJEU. The UK Supreme Court has now lifted the stay of enforcement.
Op-Ed on circumstances in England, now that the UK is no longer a Member State of the European Union, with comments on the current British government, the postBrexit role of the Court of Justice of the European Union, the Withdrawal Agreement, the ‘Bruxembourg’ bubble, and responses to the Miller cases in the UK.
‘Limiting “Final losses” doctrine in cross-border transfer of the place of effective management’
The Court of Justice’s ruling in Grafe & Pohle on ‘Transfer of an Undertaking’ By Daniela Krömer
By Ricardo Antón
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Analysis on Grafe & Pohle (C–298/18) where the successful tenderer of a public tender does not take over operational resources such as buses, and the scope of a ‘transfer of an undertaking’.
Analysis on the Court of Justice’s case in AURES (C405/18), concerning the possibility of deducting a tax loss in a later tax year, in a Member State other than that in which it has occurred, because the company has transferred its place of effective management and tax residency to another Member State.
Library - Book Review
By Bernd Justin Jütte
ANNETTE KUR, THOMAS DREIER, STEFAN LUGINBUEHL
European Intellectual Property Law: Text, Cases and Materials (2nd ed)
Edward Elgar Publishing Ltd 736pp.
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Bernd Justin Jütte reviews the second edition of this book, which comes six years after the rst edition. He describes it as didactically convincing, with an excellent structure, and as accessible, and a good work of reference, noting also that it includes chapters that draw on other subject matters that complement intellectual property law.
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