The latest issue
RVAP 128-Ith ISSUE
JANUARY - APRIL 2024
Studies
El derecho a la protección de datos personales ante la videovigilancia en el ámbito laboral: la progresiva devaluación en la jurisprudencia constitucional de la obligación de informar al trabajador 
Author: CABELLOS ESPIÉRREZ, Miguel Ángel
ABSTRACT: The use of video surveillance as a control mechanism for noncompliance
by workers has been the subject of a very notable regulatory and
jurisprudential evolution. From this evolution, it can be observed how the duty to
inform the worker has progressively depreciated, reaching its peak with the latest
constitutional jurisprudence. With its interpretation of current regulations, the
Constitutional Court has virtually made it voluntary for employers to inform, or
not, in a minimally precise and explicit manner, the workers about the existence
and purposes of video surveillance within the company. Meanwhile, employers
are allowed to continue benefiting from the results of this video surveillance
activity to monitor work activities, despite not having sufficiently fulfilled their
obligations to inform the workers. Whether this is compatible with the essential
content of the workers’ right to data protection (Article 18.4 CE) is, at the very
least, debatable. The purpose of this work is to analyze the problems posed by the
current interpretation of the Constitutional Court and how it has given a content to
the provisions of the Spanish Organic Law on Data Protection and Digital Rights
(LOPDGDD) that does not seem to correspond to what the latter intended to
regulate, with consequent harm to the effectiveness of a fundamental right such
as the right to data protection in the workplace.
KEYWORDS: Data Protection. Video surveillance. Employee information.
Proportionality. Constitutional jurisprudence.
Novedades sustantivas y procedimentales en la Ley 1/2023, de la potestad sancionadora de las Administraciones Públicas Vascas
Author: GARCÍA URETA, Agustín
ABSTRACT: This article examines some of the rules set out in Act 1/2023, of
March 16, on the sanctioning power of Basque public authorities. Among those
rules, the article considers some relating to the basic sanctioning principles
as well as the position of minors, interested persons or the so-called victim.
The article also analyses certain procedural rules and other institutions such as
the conciliation and the execution of sanctions. Although the law aims to fully
regulate the legal regime of the sanctioning power, it does not differ from the
regulation set out in former Act 2/1989 transcribing several rules included in State
Acts 39 and 40/2015.
KEYWORDS: Sanctions. Principles. Interested people. Victims. Concilliation.
Una endeble cultura teórico-jurídica en la jurisprudencia sobre la «motivación» de los nombramientos discrecionales
Author: IGARTUA SALAVERRÍA, Juan
ABSTRACT: Two decisions of the the Third Chamber and their accompanying
individual opinions will serve as an opportunity to rethink the advisability of
abandoning the doctrine, which currently prevails in that chamber, on the control
of the motivation of discretional appointments.
KEYWORDS: Motivation. Linguistic text and logic discourse. Regulated and Discretional.
Individual and joint assessment. Essential comparison. Indifferent choices.
Las medidas de protección del informante: la base de la funcionalidad del sistema
Author: QUESADA LUMBRERAS, Javier E.
ABSTRACT: The construction of an effective whistleblower protection system
requires the establishment of a prior legal framework that generates trust and
legal certainty for whistleblowers. The target to beat, therefore, is the fear of
reprisals, which, together with the importance of whistleblowing, are the main
factors on which the functionality of the whole system depends. The analysis of
these measures in the Spanish whistleblower protection system will be, precisely,
the focus of our work in order to verify the viability of the system designed.
KEYWORDS: Whistleblower. Protection measures. The fight against corruption.
Euskera
La normativa sobre el euskera publicada en 2023
Author: COBREROS MENDAZONA, Edorta
ABSTRACT: This annual chronicle includes the main jurisprudential and regulatory
developments with relevance in the status of Basque language.
KEYWORDS: Basque language. Jurisprudence. Legal norms.
Jurisprudence
La saga rumana sobre el Estado de Derecho: una historia inacabada de desavenencias judiciales
Author: CRUZ MANTILLA DE LOS RÍOS, Pablo
ABSTRACT: The RS case is one of the latest rulings issued by the Court of
Justice in the neglected Romanian rule of law saga. Together with other European
counterparts, the Romanian Constitutional Court is openly questioning some basic
postulates on which the European legal order is based. It joins a growing number
of constitutional jurisdictions that are challenging the Luxembourgian conception
of the principle of primacy and its interpretative authority. They use for this purpose
a worrying articulation of national identity in terms that are incompatible with the
effectiveness, uniformity and coherence of Union law. This article aims to address
a series of judicial disagreements between the Romanian Constitutional Court and
the CJEU, with particular attention to the RS case, in which it becomes evident
the pernicious consequences of the tough crisis of the rule of law for the most
elementary principles of the European legal system.
KEYWORDS: Rule of law crisis. Principle of primacy. National identity. Populism.
Notes
El dinero en efectivo en la encrucijada: impulso, restricciones y su convivencia con el euro digital
Author: ESTEBAN RÍOS, Javier
ABSTRACT:The progressive digitisation of social and economic relations means
that cash is tending to be replaced by other digital means of payment. Despite this,
cash is still very relevant for certain groups, it has some intrinsic characteristics that
are difficult to replicate, and is guaranteed by primary law. In this context, Member
States —and in particular Spain— have adopted a two-pronged approach to cash,
both promoting and restricting at the same time its use by citizens. In view of this
dispersion of national responses, the EU legislator is working on a proposal for
regulation to ensure that cash remains an effective payment alternative. The aim is
to prevent the erosion of the legal tender status of cash by defining its admissibility
more precisely and by boosting its accessibility to the public. This promotion of
cash is framed within a European context of transition, which also includes the
commitment to the digital euro. This digital currency will, in principle, complement
cash, from which it takes some of its basic characteristics. However, the launch of
the digital euro appears as a firm step towards replacing cash, which means that the
cohabitation of the two means of payment would be temporary.
KEYWORDS: Cash. Money. Digital euro. Financial exclusion. Monetary policy.
La contratación pública: evolución europea de una estrategia
Author: MÉNDEZ NÚÑEZ, María Isabel
ABSTRACT: The strategic perspective of public procurement requires a paradigm
shift that puts procurement at the service of other public policy objectives. This new
vision is not a recent development, but has been taking shape within the framework
of a European Union that is striving to combine the aspirations of the common
market with the objectives of a social and sustainable Europe. Thus, step by step,
environmental and social clauses have made their way into public contracts; firstly,
sporadically and promptly; secondly, through a systematic effort to analyse how
they fit into the different phases of the tendering procedure; and finally, through a
clear proposal in favour of strategic public procurement. In this paper we approach,
from a historical perspective and within the scope of the Union, the construction and
characteristics of strategic public procurement.
KEYWORDS: Environmental clauses. Social clauses. Public purchasing. Public procurement.
Strategic public procurement.
Bibliography
RVAP 128-II MONOGRAPH
Solidaridad en el espacio europeo de libertad, de seguridad y de justicia:retos jurídicos ante tiempos inciertos
Solidarité dans l’espace européen de liberté, de sécurité et de justice: défis juridiques en des temps incertains
I. Solidaridad y migraciones
La solidaridad en la gestión de los flujos migratorios internos de la Unión Europea
Author: OLESTI RAYO, Andreu
ABSTRACT: The so-called refugee crisis forced a rethinking of migration and
asylum policy, as the consequences of the transfer of hundreds of thousands
of people within the Schengen area jeopardized the effective free movement
of persons. Among the measures proposed, those relating to the creation of
a mechanism for the relocation between Member States of persons seeking
international protection stand out. The drawbacks and impediments to achieving a
stable, predictable and supportive system in this matter represent an example of
the difficulties of deepening European asylum policy.
KEYWORDS: European Union. Migration policy. Asylum policy. Relocation.
Solidaridad a la carta y seguridad reforzada como coordenadas de la política de migración en la Unión Europea
Author: CHICHARRO, Alicia
ABSTRACT: The repeated failure of the measures adopted by the EU in the
area of migration has been the trigger for proposing a renewed approach on this
field, through a regulatory package derived from the New Pact on Migration and
Asylum. On the one hand, the management of European migration policy adopts
a more flexible concept, that integrates other forms of solidarity for those States
that do not wish to receive migrants. On the other hand, it continues to focus on
security as the cornerstone of relations with third countries, ignoring the possible
violation of human rights when negotiating with non-democratic regimes. Using
a qualitative methodology, we analyze these two pillars to find out if the approach
really responds to the continent’s challenges, which range from the management
of flows, through reception and integration, to the challenge of counteracting the
demographic and social aging of our societies.
KEYWORDS: European Migration Policy. New Pact on Migration and Asylum. Solidarity mechanisms.
European Security. Third countries.
Le mécanisme de solidarité volontaire. Une initiative précieuse à l’effectivité relative
Autor: FOUCART, Romain
ABSTRACT: ABSTRACT: To address the migration crisis facing the European Union since
2015, several Member States have proposed to go beyond a totally stalled
legislative negotiation on a new Pact on migration and asylum by launching
a voluntary migration solidarity mechanism. This temporary platform has had
mixed results. In addition to the misleading figures and political wrangling that
led to its de facto suspension, this initiative shows how far the intergovernmental
method can overcome stalled negotiations (i.e. several secondary law proposals
that shaped the European Commission’s new Pact on migration and asylum from
September 2020) with bold suggestions. However, in no case can it replace a
permanent tool to increase solidarity between Member States on such a sensitive
issue.
KEYWORDS: European Union. Migration and asylum. Solidarity. Soft law.
Une réalité pratique de l’acception de la solidarité par l’État français
Author: SIMONIAN, Merilin
ABSTRACT: Solidarity must be distinguished from altruism, which leads to
helping one’s neighbor through a simple moral commitment, without the need
for reciprocity, as well as from cooperation, in which everyone works in a spirit
of general interest for the whole. Unfortunately, today, state solidarity, at least
in France, is very artificial in practice. However, the French state has not always
been so closed. It lifts the barrier more easily when it needs to. The State does
not necessarily treat requests in the same way, there is a selective solidarity. We
also see how the State offloads this solidarity onto citizens or other non-state
structures. This poses great difficulties for the latter, which makes this “offloading”
very debatable and sort of hypocritical, also in this case, because in the end it
is not the State that is “really” in solidarity. But therein lies the real solidarity.
Consequently, this unloading of the declared solidarity of the State on citizens and
associations is obviously a failure, or at least poses a major difficulty in putting
declared solidarity into practice. This poses a real philosophical problem for NGO
actors, remembering that migration is often a journey in search of dignity.
KEYWORDS: Solidarity. Citizens. Inmigracion.
II. Solidaridad y derechos fundamentales
Solidaridad normativa y derechos fundamentales en el Código de Fronteras Schengen
Author: DONAIRE VILLA, Francisco Javier
ABSTRACT:This paper examines the respect for fundamental rights within
the scope of the Schengen Borders Code (SBC). Firstly, it does so in the light
of the current status quo, jurisprudential and normative. It then surveys the
impact of COVID-19 and of the unprecedented measures, with no clear legal
basis, that had to be improvised against the pandemic and which had a major
impact on the SBC (closure of external borders, reintroduction of internal border
controls and changing prohibitions on “intra-Schengen” movements) as well
as on fundamental rights. Finally, and also from the perspective of respect for
fundamental rights, the impact of the New Pact on Migration and Asylum on the
CFS is addressed, through the proposal for amendment of the CFS presented by
the Commission, currently under consideration.
KEYWORDS: Schengen Border Code. Fundamental Rights. Regulatory Solidarity. COVID-19.
New Pact on Migration and Asylum.
El reconocimiento de los derechos y el principio de solidaridad en el marco de la activación de la Directiva 2001/55/CE
Author: MILIOS, Georgios
ABSTRACT: This text analyzes the main characteristics of the temporary
protection regime that was activated in response to the displacement of persons
from Ukraine, approaching the subject from two perspectives. First, the temporary
protection regime is studied from the perspective of the recognition of the rights
of the beneficiaries. Secondly, the contribution approaches the issue from the
perspective of solidarity understood in two senses. On the one hand, the solidarity
of the EU with persons in need of protection and, on the other hand, the principle
of solidarity referring to the sharing of responsibility among the Member States
for taking in displaced persons from Ukraine. It is argued that although the EU’s
reaction to offer immediate protection is generally welcome, the activation of
temporary protection does not fail to highlight that solidarity in the framework of
EU asylum policies is completely unequal.
KEYWORDS: Temporary protection directive. Recognition of rights. Solidarity.
War in Ukraine. Family reunification.
Frontex, solidaridad y derechos fundamentales. Reflexiones libres sobre una Agencia siempre en la tormenta
Author: BACHOUÉ PEDROUZO, Géraldine
ABSTRACT: The European agency Frontex, created in 2004 and whose
mandate has been reformed a couple of times, in particular after the migration
crises, has had operational powers and a permanent contingent since 2019. The
operations carried out in the framework of its new external border surveillance
operations have revealed human rights violations. The aim of these reflections is
not to offer a partisan or vindictive critique of the Agency’s position, but rather
a critique based on objective and concrete elements. Frontex has become the
emblem of the dilemma of European external border management, crystallising
all fears. However, changes are expected from Frontex, which is supposed to
embody solidarity and unification of European migration policy.
KEYWORDS: Frontex. European migration policy. Fundamental rights.
El derecho a la identidad: hacia un nuevo procedimiento judicial de carácter preferente para la determinación de la edad
Author: GARCÍA-VÁZQUEZ, Sonia
ABSTRACT: This contribution addresses the content of the right to identity
and analyzes the path towards a new judicial age determination procedure, as
well as the controversial issues that may arise in relation to it. To begin with, we
will reflect on profiles, models of action and the reasons behind the phenomenon
of child immigration. Secondly, we will approach the international, community
and national regulatory framework, without ignoring relevant jurisprudential
contributions in all three areas. Finally, we will address the legal status of the
UFM, as well as their rights and their development, in accordance with the
principle of the best interests of the child.
KEYWORDS: Right to identity. Child protection. Best interests principle.
Age determination procedure. UAC.
En busca de solidaridad en la política migratoria laboral europea
Author: SOBOTOVICOVA, Simona
ABSTRACT: The European Union (EU) legislator has recently adopted different
legal frameworks regarding European labour migration policy. The admission of
third-country nationals for employment purposes to meet the needs of the labour
market must be considered as one of the main objectives in several EU Member
States. Undoubtedly, the European labour market, increasingly geared towards
attracting and retaining talent to foster growth and innovation potential, requires
new workers from third countries. In addition, the COVID-19 pandemic has led
to the adoption of unprecedented measures to address needs in several specific
occupations with labour shortages, particularly related to healthcare skills.
KEYWORDS: COVID-19. EU labour migration law. Labour market. Labour shortages.
Third country nationals.
Retour sur les relations entre les principes de solidarité et de confiance mutuelle à la lumière des droits fondamentaux
Author: FONTAINE, Marion
ABSTRACT: The growing use of the concept of “solidarity” in institutional and
political discourse attests that the “refugee crisis” is first and foremost a crisis of
solidarity in the European Union. More broadly, it reveals a crisis of values that
questions mutual trust between Member States. This article examines the law and
legal practice to analyze the nature of the relationship between the principles of
“solidarity” and “mutual trust”. The latter are structural principles of the Union,
as illustrated by the fundamental rights litigation concerning asylum and the
European Arrest Warrant. Indeed, the diptych of solidarity and trust is identifiable
in these two areas of the AFSJ, and the interaction and resolution of their
relationship is closely linked to the imperative of protection of fundamental rights.
KEYWORDS: Solidarity. Mutual trust. EU values. Area of freedom, security and justice.
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