Francisco Coutinho

Relatório que incide sobre a forma como o direito internacional é perspetivado na ordem jurídica moçambicana no plano constitucional/legislativo, judicial e doutrinal. Neste texto procura-se encontrar resposta a questões fundamentais relativas à relação entre o direito internacional e o direito nacional, como a de saber como se processa a incorporação das normas internacionais na ordem jurídica moçambicana ou que posição ocupam no respetivo esquema de fontes interno.

In Ognyanov (judgment of 5 July 2016, case C-614/14), the Court of Justice held that Bul-arian courts have to set aside a national rule aimed at protecting fundamental rights of the parties that has the effect of automatically disqualifying a court that refers questions for a preliminary ruling along with the factual and legal context of the case. The rules of procedure of the Court of Justice regard the factual and legal context of the case as a constitutive element of preliminary references. Knowledge of the facts of the case and the applicable national law allows the Court of Justice to control the domestic application of EU law. Failure to include an accurate factual and legal context of the case is a ground for the declaration of the manifest inadmissibility of a preliminary reference by the Court of Justice. The factual and legal context of a criminal case may, however, be drafted in such a way that compromises the impartiality of the court and the presumption of innocence of the accused.

Este artigo debruça-se sobre a participação dos governos dos Estados-Membros, em particular o português, no âmbito do processo prejudicial previsto no art. 267.º do Tratado sobre o Funcionamento da União Europeia (TFUE).  Esta constitui a única forma que os Estados-Membros têm para tentar influenciar a decisão do Tribunal de Justiça num plano estritamente jurídico-processual.
A forma como as administrações nacionais, em especial a portuguesa, exploraram as possibilidades de participação que lhes foram atribuídas pelo Tratado constituirá o cerne deste estudo.

Este artigo debruça-se sobre a natureza jurídica dos “memorandos de entendimento” negociados pelo Governo português com o Fundo Monetário Internacional, a Comissão Europeia e o Banco Central Europeu (a “troika”) que preveem o programa de ajustamento económico e financeiro que condiciona a assistência financeira internacional a Portugal entre 2011 e 2014. Aborda também, no mesmo contexto, o memorando que servirá de base a futuros “resgates” de Estados-Membros na União Europeia.

This article explores the relationship between arbitration courts and the preliminary reference procedure foreseen in Article 267 TFUE. It starts by explaining the importance of preliminary references in the development of legal integration in the European Union. Afterwards discusses the case law of the Court of Justice of the European Union concerning the admissibility of preliminary references sent by arbitration courts. Special attention will be given to the “Merck Canada Inc.” order, in which the Court of Justice answered a preliminary reference sent by a compulsory Portuguese arbitration court established by law to rule on intellectual property conflicts regarding generic drugs . I argue that in “Merck Canada Inc.” the Court of Justice should have refused to answer the questions submitted because the referring arbitration court was not a last instance court and did not satisfied structural requisites of a “court or tribunal of a Member State”. The same does not apply to tax arbitration courts, which not only fulfil those requisites, but should also be considered as “courts or tribunals of a Member State against whose decisions there is no judicial remedy under national law” submitted to the obligation to refer foreseen in §3 of art. 267 TFEU.

This article analyses the transposition of Directive 2004/38 into Portuguese Law, as well as its evolution. In particular, it focuses on the transposition of the rights of entry, residence and removal, as well as on the problems identified in the access to employment in the private and public sector and to social benefits; the situation of frontier workers and sportsmen; the maritime sector, and access to scholarships. Family reunification issues in Portugal are also examined.

The international bailout granted to Portugal between 2011 and 2014 was conditional on the adoption by the Portuguese State of austerity measures included in a memorandum of understanding (MoU) signed by the European Commission on behalf of the European Union (EU) and the Member States. The MoU was never published in an official journal or even translated into the Portuguese language. Its implementation caused a significant decrease in the level of protection of social rights.
The compatibility of the MoU with core principles of the rule of law and with the EU´s social Constitution was never tested in court. A systemic failure in the jurisdictional system of the EU immunized the MoU to any judicial challenge. At the apex of the system, the Court of Justice of the EU declined to answer preliminary references submitted by Portuguese lower courts that questioned the compatibility with the Charter of Fundamental Rights of the EU of national budgetary measures that implemented the MoU. At the bottom, Portuguese courts either failed to properly identify the EU law acts that were the source of national austerity measures or disregarded their role as common EU law courts of ordinary jurisdiction when they bypassed the opportunity to refer a question for a preliminary ruling of the Court of Justice challenging the validity of the MoU.

This Article offers a tale about a dispute over the continental shelf resources of the oil-rich Timor Sea that currently involves a Goliath, Australia, and a David, Timor-Leste.  The story includes colonization by a European state, Portugal, an invasion and annexation by a neighbor country, Indonesia, the negotiation of several contentious international treaties, and, more recently, is akin to a John le Carré novel, as it includes espionage, thefts, and imprisonment of whistleblowers.  This story is not about the kid-glove diplomacy that usually characterizes relations between states.

This article deals with the Portuguese courts’ assimilation of the European Union (EU) legal order since the accession of Portugal in 1986. It will review (i) the “European duties” entrusted to the Member States’ courts, as made explicit by the Court of Justice of the European Union (ECJ) in the framework of the preliminary ruling procedure, and (ii) the way Portuguese courts have implemented such duties during the last two decades. It is somewhat surprising that whilst the Portuguese courts have generally accepted the duties set forth by the ECJ, the number of preliminary references such courts have made to the ECJ is still exceedingly low.