A very fearful Court? The protection of Fundamental Rights in the European Union after Opinion 2/13

In December 2014 the Court of Justice of the European Union found, in Opinion 2/13, that the Draft Agreement for the EU accession to the ECHR was not compatible with the Treaties; unfortunately, some of the grounds relied upon by the Court will be diffi cult to remedy in a new agreement, even should the other parties to the ECHR be willing to negotiate a new agreement. Th is contribution recalls the reasons why accession was deemed necessary, and engages in a critical analysis of the Court’s ruling. In particular, it takes issue with the Court’s approach to justice and home aff airs, where the Court would like the accession agreement to somehow relieve the Member States of some of their ECHR obligation when giving eff ect to legislation based on ‘mutual trust’. Th e article then suggests that the three political institutions should simply declare that they consider themselves bound by the ECHR and that they will act without delay when and if the European Court of Human Rights should fi nd that a piece of Union law is incompatible with the Convention

'Opening Pandora's Box: Some Reflections on the Constitutional Effects of the Decision in Pupino'

Constitutional issues arising from the ruling in the Pupino case – Court of Justice holds that the duty of consistent interpretation applies also in relation to framework decisions – Analysis of the extent to which the doctrine of consistent interpretation can (and should) be transposed to the area of police and judicial cooperation in criminal matters – Consequences for possible extension of other constitutional doctrines elaborated in the context of the first pillar to the third pillar – Extent to which third pillar acts can become a vehicle for the enforceability of fundamental rights as general principles of Union law – The possibility of invoking Francovich damages for breaches of Union law – To what extent can the Pupino reasoning be extended to the second pillar

Citizenship: Reallocating Welfare Responsibilities to the State of Origin

Free movement orthodoxy teaches us that Member States cannot rely on economic justifications in relation to rules that are directly discriminatory; and that economic reasons can be taken into account in order to justify rules that are not directly discriminatory provided that the aim pursued by the measure is not solely economic. This approach is entirely consistent with the premises of an internal market where protectionism should be eradicated, but where Member States should still be allowed to pursue public policy aims which, quite naturally, might carry budgetary constraints. In this respect, the greatest challenge for the interpreter concerns rules that are both economic and inherently territorial, such as tax rules: in those cases, eliminating discrimination without impinging on the integrity of the tax system has not always been easy to achieve. Similarly, the application of internal market rules to fields, such as healthcare, that are particularly resource-sensitive has not been entirely straightforward. Jukka Snell, in another chapter of this collection, analyses the extent to which the ‘no economic justification’ rule is actually supported by a more careful reading of the case law on the free movement provisions. In this contribution, on the other hand, I want to explore how far those hermeneutic guidelines can be transposed to one particular area of free movement, that of citizens. In particular, my contention is that in the field of Union citizenship, the migration of citizens with no connection to the internal market can be limited on economic grounds; and, further, that this tells us something important about what Union citizenship is (or, more precisely, what Union citizenship is not). I will start by analysing the case law on incoming migration of non-economically active Union citizens. I will then turn to the Court’s approach to outward movement; and to citizens that, whilst not economically active, have some internal market ‘credentials’. I will conclude that the Court’s approach to justifications shapes Union citizenship to reinforce the allocation of welfare responsibilities along traditional lines, so that Union citizens are primarily the economic and social responsibility of their State of nationality, regardless of the actual links existing between citizen and state of residence and state of nationality

Earned Citizenship - Understanding Union Citizenship through its Scope

In this contribution I will argue that we are witnessing a reactionary phase in the Court’s interpretation of the citizenship provisions which not only reaffirms the migration paradigm, but also contracts the scope of application of Article 20(1) TFEU and imposes additional criteria for the enjoyment of citizenship rights to those provided for in Directive 2004/38. In turn, this development in the case law has important repercussions on how we think about Union citizenship – in particular, the status/beneficiary dichotomy, along with the additional requirements imposed by the Court and the reallocation of responsibility of vulnerable citizens across national boundaries, not only reduce the relevance of Union citizenship, but also transform it from a fundamental status to a mere additional one, so that the significance of Union citizenship is much diminished. While this turn in the case law can be defended from a hermeneutic perspective, it has important consequences. First, it restates the primacy of the market citizen; secondly, and more importantly, Union citizenship far from being a uniting concept becomes a vehicle for further discrimination. In this writer’s opinion it becomes nigh impossible to defend the concept of Union citizenship thus interpreted: no citizenship at all is preferable to such an unequal citizenship. To illustrate my claim I will recall the more recent case law on the scope of application of Union citizenship. I will then briefly analyse the significance of the ‘substance of rights’ case law, to then turn to a critique of the Court’s approach

Short-term outcomes after long inverted versus short standard biliopancreatic limb in Roux-en-Y gastric bypass

Background: Obesity is a public health issue that affects the entire world and it is rising. Roux-en-Y gastric bypass is one of the most common bariatric procedures and it can reach a significant and sustained excess weight loss and efficient comorbidity control. The main objective was to compare short-term outcomes between standard versus long biliopancreatic limb gastric bypass patients.Methods: it was a retrospective, comparative, descriptive, single-center study. We evaluated obese patients that underwent a laparoscopic Roux-en-Y gastric bypass with standard or long biliopancreatic limb in Centro Medico ABC, Mexico City, and compared general demographics, weight loss, excess weight loss, comorbidities and quality of life.Results: Of 50 patients analyzed, 24 were in the standard gastric bypass (S-GB) and 26 in the long biliopancreatic limb (LBPL-GB). Mean weight loss in the S-GB group was 33.1±12.1 kg and in the LBPL-GB was 40.2±12.6 kg with a difference of 7.1 kg. The percentage of excess weight loss (%EWL) was 72.5±14% in S-GB and 72.9±19% in LBPL-GB, with a difference of 0.4% in the 12 months of follow-up. There was a complete reduction of hypoglycemic drugs in 80% in the S-GB group and 100% in the LBPL-GB group.Conclusions: With this modification of the technique, we achieved important outcomes in regard of comorbidities, without affecting drastically weight loss or the EWL. This procedure is safe and feasible

30-Day morbidity and mortality of bariatric metabolic surgery in adolescence during the COVID-19 pandemic – The GENEVA study

Background: Metabolic and bariatric surgery (MBS) is an effective treatment for adolescents with severe obesity. Objectives: This study examined the safety of MBS in adolescents during the coronavirus disease 2019 (COVID-19) pandemic. Methods: This was a global, multicentre and observational cohort study of MBS performed between May 01, 2020, and October 10,2020, in 68 centres from 24 countries. Data collection included in-hospital and 30-day COVID-19 and surgery-specific morbidity/mortality. Results: One hundred and seventy adolescent patients (mean age: 17.75 ± 1.30 years), mostly females (n = 122, 71.8%), underwent MBS during the study period. The mean pre-operative weight and body mass index were 122.16 ± 15.92 kg and 43.7 ± 7.11 kg/m2, respectively. Although majority of patients had pre-operative testing for severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) (n = 146; 85.9%), only 42.4% (n = 72) of the patients were asked to self-isolate pre-operatively. Two patients developed symptomatic SARS-CoV-2 infection post-operatively (1.2%). The overall complication rate was 5.3% (n = 9). There was no mortality in this cohort. Conclusions: MBS in adolescents with obesity is safe during the COVID-19 pandemic when performed within the context of local precautionary procedures (such as pre-operative testing). The 30-day morbidity rates were similar to those reported pre-pandemic. These data will help facilitate the safe re-introduction of MBS services for this group of patients