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EU law.XLIV In order to meet the requirements of legal certainty, individuals must have the possibility of determining the source of the national measures imposing obligations upon them and, therefore, ‘not only must the national legislation be published but also the measure of EU law which obliges the Member States to take measures imposing obligations on individuals’. XLV The MoU was not published in the Official Journal of the EU and had a single official version in English. Portuguese laypeople affected by unprecedented austerity were unable to access through an official source and read in their mother tongue the legal document that most seriously affected their daily life during the three (very long) years.XLVI The MoU and its updates were not considered sufficiently important to be published in the L (Legislation) Series of the Official Journal of the European Union. The document was eventually published as an annex to an edition of the Directorate-General for Economic and Financial Affairs of the European Commission named European Economy – Occasional Papers. Since it was not published in the Official Journal of the European Union, the MoU was unable to produce legal effects.XLVII Publication in the Official Journal would also have avoided the problem caused by the decision to adopt the English language as ‘the original and official version’ of the MoU.XLVIII This was a clear violation of the principle of linguistic diversity of the EU protected by Article 3 (3) TUE that states that the Union ‘shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced’ and by Article 4 (1) according to which the Union ‘respects the equality of Member States before the Treaties as well as their national identities’. Given that article 4 of the EEC Council Regulation 1/1958 establishes the Portuguese language as one of the twenty-four official languages used by EU institutions, and since the MoU specifies a Council decision addressed to the Portuguese Republic (Article 5 of Council Implementing Decision 2011/344/EU), the Commission was obliged to sign the official version of the MoU in the Portuguese language.XLIX 4.3. The Fidelidade Mundial and Via Directa decisions of inadmissibility displayed a surprising and unwelcome restraint by the Court the Justice. ‘Wherever EU goes, fundamental rights must go too’ could be the motto for the Court´s recent case law (Kilpatrick 2015: 352). In the Kadi Except where otherwise noted content on this site is licensed under a Creative Commons 2.5 Italy License E -119

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Austerity on the loose in Portugal: European judicial restraint in times of crisis

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Authors: Francisco Pereira Coutinho

Country

Portugal

Rights Involved

Right to social security

Issue

Resource expenditure
Resource generation
Transparency

Year: 2016

Summary: Discusses the MAR obligation as it relates to austerity measures adopted by Portugal. 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. 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 is regarded 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.

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Portugal case.pdf
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Austerity on the loose in Portugal: European judicial restraint in times of crisis

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