V.A. Serov - Il Ratto di Europa

FEDERICO FERRI, Authorized wiretapping in the absence of specific grounds and the protection of fundamental rights: some critical considerations on the HYA et al. ruling

ABSTRACT – With its judgment of 16 February 2023 in the case HYA et al., the Court of Justice of the EU “safeguarded” a controversial practice developed by some Bulgarian judicial authorities. By considering such practice in the framework of the EU Directive on privacy and electronic communications, read in the light of the Charter of Fundamental Rights, the Court concluded that a decision authorising telephone tapping does not need to be based on a detailed and substantiated request from the competent prosecution authority if the reasons for the authorisation can be easily and unambiguously deduced from a cross-reading of the application and the authorisation. The present piece critically analyses the reasoning of the Court, in particular in order to stress the importance of the fundamental right to private life of the individuals concerned by those measures.

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JASMINE FAUDONE, The Windsor Framework: a step Forward more stable EU-UK relations?

ABSTRACT – On 27 February 2023, UK Prime Minister Rishi Sunak and the President of the European Commission Ursula von der Leyen reached a political agreement to overcome the deadlock surrounding the Ireland/Northern Protocol. The ‘, named after Windsor Park, where the meetings took place, is a set of joint solutions made of several documents from political declarations to legal acts to be implemented, covering the arrangements on customs, agri-food, medicines, VAT, and the application of EU Law in Northern Ireland (NI). The main document of the Windsor Framework is the EU-UK Joint Committee decision adopted on 24 March 2023, amending the Ireland/Northern Ireland Protocol. This short comment will first analyze the provisions regarding the movement of goods. Then it will move to the main innovation of the agreement, namely the ‘Stormont Brake’, questioning its effectiveness. Finally, it will reflect on the Windsor Framework’s effect on the long-term EU-UK relationship.

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MARCO GERBAUDO, Temporary Protection: Which Future in The EU Migration Policy?

ABSTRACT – For over two decades, EU temporary protection remained un-used despite the many “migratory crises” at the EU external borders. The Russian aggression in Ukraine however prompted EU institutions to swiftly grant temporary protection to people fleeing the conflict. The renaissance of temporary protection bears the question of which is going to be its role in the future EU migration policy. Despite the repeal proposal advanced in the New Pact on Migration and Asylum, it is unlikely for temporary protection to disappear from the EU framework. To make the current and future applications of temporary protection more feasible, the EU must seize the momentum and maintain the political will and legal creativity displayed upon its activation in March 2022. Two main obstacles must be overcome: the “return dogma” and the lack of tools for the EU to properly address mass influxes and their implication on the long-term. The prima facie recognition of international protection proposal recently advanced by the European Parliament goes in the right direction.

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DAVIDE DIVERIO, There is no new thing… under the sun? First considerations on the judgment of the EU Court of Justice in the case AGCM v Comune di Ginosa

ABSTRACT – This paper deals with the judgment of the EU Court of Justice in case C-348/22 (AGCM vs. Comune di Ginosa), relating to italian legislation providing for the automatic extension of concessions for the occupation of State-owned maritime property, in which it was stated, inter alia, that the Article 12(1) and (2) of Directive 2006/123 must be interpreted as meaning that the obligation for Member States to apply an impartial and transparent selection procedure to potential candidates and the prohibition on automatic renewal of an authorisation granted for a given activity are laid down unconditionally and sufficiently precisely to be regarded as having direct effect. On the basis of the Court’s case-law, the A. try to highlight especially the issues less innovative of this judgment.

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SAMUELE BARBIERI, All Roads Lead to Luxembourg. The Italian “Rinvio pregiudiziale” to the Cassazione and Art. 267 TFEU

ABSTRACT – The Italian Legislature has recently introduced Article 363-bis in the Code of Civil Procedure. The new disposition establishes a “Rinvio pregiudiziale” through which a court or tribunal could ask the Cassazione the resolution of an interpretative question “exclusively of law”, not yet resolved by the Court itself, which is of serious difficulty and likely to arise in numerous cases. Although it appears from the drafting of the Article 363-bis that its model is to be found in the saisine pour avis to the French Cour de cassation, it is not possible not to read it in the light of Article 267 TFEU. Therefore, this post aims to offer a first prognostic analysis of the role of the referring court or tribunal and of the Cassazione in relation to the obligations deriving from EU Law. The reflections on the possible interaction between the two different judicial dialogues are the starting point for a question of even deeper significance: how will the dialogue of Italian judges with the European Court of Justice change by virtue of this new mechanism introduced into the domestic legal system?

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LORENZO NENCINI, From Lexitor to UniCredit via the decision no. 263/2022 of the Italian Constitutional Court: a judicial short-circuit?

ABSTRACT – The article reviews the UniCredit judgment of 9 February 2023, in which the ECJ ruled that, in the case of early repayment of a consumer credit in the real estate sector, Member States are free to limit the refund of total costs to the recurring ones only, excluding the upfronts. Other than reassessing the Lexitor judgment of 2019, which had affirmed the indivisibility of the reimbursable total costs, the rationale of the UniCredit judgment seems incompatible with Italian Constitutional Court’s decision no 263/2022. The stages of the above-said case law are retraced. Then, the contribution focuses on the UniCredit ruling: if doubts remain as to the logical path of the motivations, the solution put forward can be endorsed. This does not detract from the fact that the position taken by the Italian Constitutional Court in the decision no 263/2022 was inevitable. In any event, the consequences of the UniCredit judgment on the Italian legal system do not appear to be fatal, as an interpretation of the national law in conformity with EU law can certainly be configured. The question of whether we are confronted with a judicial review remains open. A subsequent preliminary ruling, in which the ECJ would most likely attempt a synthesis of the Lexitor and UniCredit solutions, could provide clarity.

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