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I·CONnect

Blog of the International Journal of Constitutional Law

Invitation–Survey–What More can ICON-S do to Support Early-Career Scholars?

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin

As we announced last month, the Co-Presidents of the International Society of Public Law (ICON-S) have authorized the creation of a Committee on Early-Career Scholars. The charge of the Committee is to produce a report on what more ICON-S can do as an institution to support junior scholars.

At this stage, the Committee invites all interested persons to complete a short survey to help us prepare our recommendations. The survey period opens now and will close on Wednesday, March 6, 2019, 5pm New York/Toronto time. The survey is available here.

As a reminder, the full Committee appears below.

  • Rehan Abeyratne (CUHK)
  • Richard Albert (Texas) [CHAIR]
  • Michaela Hailbronner (Muenster)
  • Aileen Kavanagh (Oxford)
  • Jaclyn Neo (NUS)
  • Mariana Velasco Rivera (Yale)
  • Juliano Zaiden Benvindo (Brasilia)

We thank you for your ideas about what more ICON-S can do to support early-career scholars.

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Published on February 25, 2019
Author:          Filed under: Reviews
 

What’s New in Public Law

–Nausica Palazzo, Ph.D. Researcher in Comparative Constitutional Law, University of Trento

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The US Supreme Court incorporated through the Due Process Clause of the Fourteenth Amendment the Eighth Amendment’s Excessive Fines Clause. 
  2. The German Constitutional Court has held that the disenfranchisement of persons placed under full guardianship and of criminal offenders confined in a psychiatric hospital is unconstitutional.
  3. The Supreme Court of India directed states to take “prompt” action to prevent incidents against Kashmiris, after the recent terror attacks.
  4. A 16-state coalition filed a lawsuit challenging the constitutionality of Trump’s declaration of a national emergency, made in an effort to fund the border wall between the US and Mexico.
  5. Alaska’s Supreme Court halted the 2013 regulations limiting Medicaid coverage of abortion services.
  6. Minority parties in Lithuania challenged the constitutionality of the Law on the Referendum and, consequently, of the referendum that would reduce the size of the Parliament.
  7. In declaring inadmissible an appeal against Turkey, the ECHR declared that it has no jurisdiction to consider whether a construction project could undermine a cultural heritage.
  8. The Supreme Court of India agreed to review its verdict in the controversial Rafale deal case, which gave the greenlight to the government jets deal with France.
  9. The South Africa’s Constitutional Court modified the test that municipalities should apply to decide on building applications.
  10. The High Court of Kenya postponed until May the decision on decriminalizing homosexual conduct.

In the News

  1. Brazilian president proposes a constitutional amendment to reform the costly pension system.
  2. Nigeria orders foreign oil and gas companies to pay over 20 billion in back taxes and royalties.
  3. According to a UK legislative report, Facebook massively violated UK data privacy and competition laws.
  4. A Turkish court of appeals upheld the convictions for terrorism of 19 opposition journalists.
  5. Amnesty International filed an amnesty appeal in favor of Cameroon’s opposition leader and supporters facing death penalty over rebellion charges for a peaceful protest.
  6. The Croatian Parliament decided not to hold two nation-wide referenda on withdrawing from the Istanbul Convention and on amending the electoral law.
  7. The South African government challenged the rules forcing Olympic athletes to lower testosterone levels, as specifically targeting Olympic campion Semenya. 
  8. The former President of Maldives was brought into custody over bribery allegations.

New Scholarship

  1. Rehan Abeyratne, More Structure, More Deference: Proportionality in Hong Kong, in Po Jen Yap & Mark Tushnet (Eds.), Proportionality in Asia (forthcoming, 2019) (exploring the ways the proportionality test is applied in Hong Kong’s constitutional jurisprudence, and arguing that, while increasingly articulated, the test has gradually become more deferential to governmental authority and expertise).
  2. Or Bassok, The Schmitelsen Court: The Question of Legitimacy, German Law Journal (forthcoming, 2019) (arguing that several courts worldwide are fulfilling Kelsen’s vision of a court as the guardian of the constitution yet possessing the mission, the means to achieve it, and the source of legitimacy that Schmitt envisioned for the president as the guardian of the constitution. Hence, these courts are Schmit-elesen courts).
  3. Laure Clément-Wilz (Ed.), The Political Role of the Court of Justice of the European Union (in French) (Bruylant, 2019) (analyzing the political choices made by and the political role of the Court of Justice of the European Union).
  4. Tom Gerald Daly, Democratic Decay: Conceptualising an Emerging Research Field, Hague Journal on the Rule of Law (arguing that conceiving of the scattered cross-disciplinary literature on the deterioration of democracy as a research field and providing an account of recent conceptual development can help to map a rapidly developing landscape, maximise the analytical utility of key concepts, identify resonances and duplication among concepts and across discrete literatures, and can help to ensure that this emerging quasi-field develops in a more coherent and rigorous manner)
  5. Stephen Gardbaum, Pushing the Boundaries: Judicial Review of Legislative Procedures in South Africa, in Constitutional Court Review IX (forthcoming, 2019) (analyzing the current comparative outer boundary of the practice of judicial review of legislative processes, in South Africa, and presenting a defense of it that suggests the need for a friendly amendment to Ely-style political process theory).
  6. Ming-Sung Kuo, Between Choice and Tradition: Rethinking Remedial Grace Periods and Unconstitutionality Management in a Comparative Light, 36 UCLA Pacific Basin Law Journal (forthcoming, no. 2, 2019) (comparing the use of remedial grace periods in constitutional review under the Civil Law and Common Law models, and offering the case study of Taiwan to argue that both the role of the judiciary and legal tradition contribute to shaping the doctrine of remedial grace periods).
  7. Bilyana Petkova, Privacy as Europe’s First Amendment, 25 European Law Journal (forthcoming, no. 2, 2019) (arguing that Europe is experiencing privacy-as-constitutional identity, in a similar way as the U.S. did with freedom of speech).

Calls for Papers and Announcements

  1. Submissions are invited from comparative law scholars around the world for a works-in-progress roundtable on all subjects of comparative law to be held at the University of Texas at Austin on May 21, 2019. Preference will be given to early-career scholars as well scholars working on book projects.
  2. The Younger Comparativists Committee of the American Society of Comparative Law (YCC) invites submissions for the Phanor J. Eder LL.B./J.D. Prize in Comparative Law, open to students currently enrolled in a J.D. or LL.B. program. The deadline for submissions is March 3, 2019.
  3. The Chicago-Kent College of Law is now accepting entries for the Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize, aimed at honoring scholarship that addresses the tension between civil liberties and national security in contemporary US. Entries are accepted through July 1, 2019.
  4. The Supreme Court Economic Review (SCER) solicits paper submissions for a Roundtable on the Economics of Criminal Procedure, Punishment, and Their Consequences, to be held at Antonin Scalia Law School at George Mason University in Arlington, Virginia, on March 26-27, 2020. The deadline for submissions is December 20, 2019.
  5. The University of Kent invites applications for the Kent Summer School in Critical Theory, which will be held July 1-12 at the Paris Centre of the University of Kent, in Paris France. Applications are due by March 3, 2019.
  6. University of Leipzig invites applications for the Summer School “Human Rights in Theory and Practice”, to be held on 1-7 September 2019 in Leipzig. The deadline for early bird registration is March 31, 2019.
  7. The European Policy for Intellectual Property association (EPIP) announces its 14th Annual Conference on “The Future of IP”, to be held in Zurich, Switzerland, on September 11-13, 2019. The submission deadline is April 7, 2019.
  8. The British Institute of International and Comparative Law is seeking to appoint a Brexit Research Fellow to investigate the legal implications of Brexit. The application deadline is March 3, 2019.
  9. The University of Leeds – School of Sociology & Social Policy has opened three positions for Marie Sklodowska-Curie Early-Stage Researchers (PhD positions) in Disability Advocacy Research. The deadline to apply is March 14, 2019.
  10. The Universitat Oberta de Catalunya issued a call for 6 postdoctoral research fellowships. The deadline for submitting applications is March 10, 2019.

Elsewhere Online

  1. David R. Cameron, After another Brexit defeat, UK-EU talks continue – and the Article 50 clock keeps ticking, Yale MacMillan Center
  2. Ramesh Ponnuru, Justice Thomas on Libel, National Review
  3. John Morijn & Israel Butler, Tracking Anti-Values MEPs: EP Seat Projections and Rule of Law Protection, Verfassungsblog
  4. Oliver Garner, Henry VII Arrives in Florence: The UK’s Withdrawal from the Convention Establishing a European University Institute, European Law Blog
  5. Vikram Aditya Narayan & Jahnavi Sindhu, A Multi-layered Indian Judicial Crisis: Listing and hearing of cases before the Supreme Court of India, IACL-AIDC BLOG
  6. Lena Riemer, The ECtHR as a drowning ‘Island of Hope’?’ Its impending reversal of the interpretation of collective expulsion is a warning signal, Verfassungsblog
  7. Pierre de Vos, Mistakes tarnish the reputation of our highest court, Daily Maverick
  8. Fola Adeleke, Postponement fuels lack of trust in Nigeria’s ability to hold fair elections, IACL-AIDC BLOG
  9. Cristina Leston Bandeira & Viktoria Spaiser Do parliamentary e-petitions debates enhance public engagement?, The Constitution Unit
  10. Vishakha Choudhary & Vishesh Sharma, The Transgender Persons (Protection of Rights) Bill, 2018: A Tale of Reneged Promises, OxHRH Blog
  11. Felix Lange, Hard times for voices from the Global South, The Völkerrechtsblog
  12. Nicholas Bagley, The United States Owes Tens of Billions to Insurers, Notice & Comment
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Published on February 25, 2019
Author:          Filed under: Developments
 

Special Announcement: New ICON·S Chapters Around the World

The Co-Presidents of the International Society of Public Law (ICON·S) are pleased to announce the formation of several new ICON·S Chapters around the world.

The Society has recently welcomed the establishment of the following Chapters: Brazil, Colombia, Germany, Nigeria, Portugal, and Singapore.

The Society looks forward to congratulating members from these new Chapters at our 2019 Annual Conference in Santiago, Chile.

As stated on the ICON·S website, the Society encourages the establishment of national and regional chapters to complement the work of the global association, subject to certain guidelines and criteria. Members who wish to establish a new national or regional chapter should draft the rules of their chapter according to those guidelines and criteria, and should send them for approval to the Executive Committee of the Society.

Congratulations to the new Chapters!

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Published on February 24, 2019
Author:          Filed under: Developments
 

Five Questions with Mariolina Eliantonio

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about her research.

This edition of “Five Questions” features a short video interview with Mariolina Eliantonio, Professor of European and Comparative Administrative Law at Maastricht University.

One of her most recent papers is “Judicial Review in an Integrated Administration: The Case of ‘Composite Procedures’,” available for download here.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com.

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Published on February 23, 2019
Author:          Filed under: Reviews
 

I-CONnect Symposium on “The Euro-Crisis Ten Years Later: A Constitutional Appraisal”–Part IV–Stemming the Tide During the Crisis in Spain: Fiscal Rules and Regional Finances

[Editor’s Note: This is the fourth and final entry in our symposium on the “The Euro-Crisis Ten Years Later: A Constitutional Appraisal.” The introduction to the symposium is available here, Part I is available here, Part II is available here, and Part III is available here.]


–Violeta Ruiz Almendral, Universidad Carlos III de Madrid

The debt and deficit exploded in Spain as a consequence of the 2007-2008 crisis, leading to the first ‘excessive deficit procedure’ against Spain in 2009, which is still open.

One of the first direct consequences of the financial crisis was the halting of the construction economy, a sector that in 2007 had represented about 13 % of Spain’s Gross Domestic Product, which is of course way too big for any economy. When the construction bubble finally popped, partly due to the financial crisis and the ensuing freeze of credit to finance further construction activities, unemployment rates soared, reaching 27 per cent in 2013. Current unemployment is still close to 15 per cent. Tax revenues followed shortly, and also plummeted. In a way, Spain had also suffered from a tax bubble, with revenues soaring too in the boom years of 2006-2007. In fact, if we analyze tax revenues for the past 10 years, the 2007-2008 years were an anomaly and the tax revenues a small bubble. This was problematic because to a certain extent such high revenues also justified higher spending, including the establishment of new entitlements.

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Published on February 23, 2019
Author:          Filed under: Analysis
 

Call for Panels and Papers–2019 ICON•S Conference on “Public Law in Times of Change?”–July 1-3, 2019–Santiago de Chile

ICON·S | The International Society of Public Law is pleased to announce that its 2019 Annual Conference will be held at the Pontifical Catholic University of Chile in Santiago, on July 1-3, 2019. This will be the sixth Annual Conference of ICON·S, following the five Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017, Hong Kong 2018) which have been overwhelmingly successful, thanks to the support of our Members.

ICON·S now invites panel and paper submissions for the 2019 Annual Conference on “Public Law in Times of Change?”.

Public law is facing a myriad of new challenges – including rising popular distrust in government, increasingly closed borders, and complex economic and technological change. We are arguably living in hard times for global public law. But will these challenges result in radical changes to the field as we know it, or will public law adapt and respond in ways that reinterpret and reinvigorate its core commitments to democracy, the rule of law, and human rights in a manner that is continuous with our current practices?

Countries around the world are witnessing the reversal of longstanding democratic gains, and new authoritarian threats. Yet there are signs of resilience in the global and national public law order: popular referenda have delivered gains as well as losses for democracy; women and young people have marched in defence of public law values; and justice is being crowd-sourced and data-driven, not just undermined by foreign cyber-attacks and “fake news”.

Under the strain of technological changes and shifts in economic globalisation, the world is also confronting large-scale changes in the structure and scope of global governance and of the “administrative” state. The Welfare State is under “siege” and at both international and domestic levels the problem of economic injustice is dominating the political and socio-economic debate around the globe.

International and regional bodies are re-orienting their focus to respond to these new challenges. And commitments to constitutional and administrative reform likewise remain strong in many legal orders. They continue to engage in formal processes of constitutional review, often as part of a transition from authoritarian to democratic, and colonial to post-colonial rule: from Chile to Myanmar, Bolivia to Tuvalu, Yemen to Sudan, and from the Philippines to Gambia. Many countries are actively debating proposals for major constitutional and legal reform. Others are grappling with the legacies of past reforms and transitions, and asking whether they were sufficient to address legacies of colonialism, and the abuse of human rights, and flagrant disregard for the rule of law.

But how far can public law go in responding to these issues? Are the sources of the current democratic crisis so deeply economic and structural that they evade any meaningful public law response? Are they rooted in debates over national identity and borders, which public law can address only partially and indirectly at best? Or does public law have the resources to adapt and respond to these challenges? Can public law, for example, help shape the future direction of state and global governance, or will changes in national and international governance in fact reshape public law as we know it?

This Annual Conference will seek to address these and related issues, bringing together leading scholars, political leaders and jurists from around the world to debate these questions, and their relevance to Latin America, their own countries, and the world.

The Conference will feature a keynote address by Justice Luís Roberto Barroso of the Supreme Federal Court of Brazil, as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional program can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.

ICON·S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.

We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate, and panel must be formed in accordance with the Society’s commitment to gender balance. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Please kindly note that each participant can present not more than 2 papers and participate – as presenter, chair or discussant – in 4 panels maximum.

Proposals of fully formed panels may be made of – or include some – papers written and presented in Spanish. In these latter cases, paper abstracts and/or panel description must in any event be submitted in English.

Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.

We invite potential participants to refer to the ICON·S Mission Statement when choosing a topic or approach for their papers or panels.

ICON·S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

All submissions must be made through the ICON·S website by 23h59 GMT on March 9, 2019. To access the submission page, you need to be a member of ICON·S. Please register or log in with your existing ICON·S account and make sure you have paid your membership fee.

Successful applicants will be notified by April 1, 2019.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON·S Santiago 2019!

Lorenzo Casini & Rosalind Dixon
Co-Presidents of ICON·S

Richard Albert, Gráinne de Búrca, Mariana Canales, Claudia Golden, Ran Hirschl, David Landau, Ruth Rubio Marin, Francisco Urbina, Cristián Valenzuela, Sergio Verdugo, Joseph Weiler and Fred Felix Zaumseil
Members of the ICON·S 2019 Organizing Committee



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Published on February 22, 2019
Author:          Filed under: Developments
 

I-CONnect Symposium on “The Euro-Crisis Ten Years Later: A Constitutional Appraisal”–Part III–Crisis and Tax Reforms in Greece: Towards Judicial Empowerment as a Means to Overcome Administrative Deficiencies

[Editor’s Note: This is the third entry in our symposium on the “The Euro-Crisis Ten Years Later: A Constitutional Appraisal.” The introduction to the symposium is available here, Part I is available here, and Part II is available here.]


Stylianos-Ioannis Koutnatzis, Democritus University of Thrace, Law School; and Georgios Dimitropoulos, HBKU College of Law & Public Policy and Centre for Law, Economics and Society, UCL

Greece’s financial crisis finds its origins in the private sector of a country on the other side of the Atlantic, by crossing the Atlantic, though, it moves from the private to the public sector; it becomes a crisis of public institutions, and eventually constitutional law, and the overall legal order. Among other consequences, in the implementation of the bailout programs, Greek parliamentary procedure was largely confined to rubberstamping the country’s international commitments; the ill-fated referendum of 2015 largely undermined the potential of direct democratic institutions; the pitfalls of social rights guarantees came to the fore.[1] This comment will focus on a distinct feature of the crisis that is usually overlooked: its importance for the constitutional dimension of tax law. 

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Published on February 22, 2019
Author:          Filed under: Analysis
 

The Venezuelan Presidential Crisis

Rolando Seijas-Bolinaga, PhD Candidate, University of Cambridge

The leader of the Venezuelan National Assembly, Juan Guaidó, was sworn in as Venezuelan interim President before a crowd on one of Caracas’ largest avenues on January 23. A week before, Nicolas Maduro, was also sworn in as President before members of the Supreme Court. Are there now two presidents in Venezuela?

It is crucial to comprehend what happened in 2018 in order to understand the current situation. After the opposition won a resounding majority in the National Assembly (Venezuela’s Legislative body) in late 2015, then-President Maduro unilaterally convoked a Constituent Assembly that was designed to bypass the National Assembly in 2017. The Venezuelan Constituent Assembly was elected ignoring constitutional procedure, and half its members were not selected by universal suffrage. Not surprisingly this Constituent Assembly only has Maduro supporters as its members. Imagine that the president of the U.S calls for the election of a parallel Congress after losing a midterm election with the added layer that the new Congress will have the power to amend the Constitution, to remove any public official, and to set new electoral calendars: this was precisely Maduro’s strategy.

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Published on February 21, 2019
Author:          Filed under: Developments
 

I-CONnect Symposium on “The Euro-Crisis Ten Years Later: A Constitutional Appraisal”–Part II: Budgetary Procedures under the Irish Constitution

[Editor’s Note: This is the second entry in our symposium on the “The Euro-Crisis Ten Years Later: A Constitutional Appraisal.” The introduction to the symposium is available here and Part I is available here.]


–Ailbhe O’Neill, Trinity College Dublin

Collins v. Minister for Finance [2016] IESC 73 required the Irish Supreme Court to explore for the first time since the founding of the State the role of the parliament in approving spending under Bunreacht na hÉireann. The case raised fundamental questions about the balance of power between institutions envisaged under the Constitution and the degree of discretion that can be validly delegated to and exercised by the executive in respect of expenditure.

The financial crisis in Ireland was precipitated by a property bubble and subsequent bursting of that bubble which left a number of systemically important banks insolvent. (For background, see Honohan, The Irish Banking Crisis Regulatory and Financial Stability Policy 2003-2008, 2010 Nyberg, Misjudging Risk: Causes of the Systemic Banking Crisis in Ireland).

In 2010, it became clear that there were significant capital shortfalls and that Anglo Irish Bank Corporation (“Anglo”) was unable to access liquidity funds from the Central Bank of Ireland’s emergency liquidity fund due to this insolvency. These shortfalls in Anglo’s funds had arisen as its assets (i.e. its property-backed loans) were transferred to the National Asset Management Agency, an entity established by the National Asset Management Agency Act 2008 with the express purpose of taking on such loans in an effort to work out the debt. Bearing in mind that the government had given a State guarantee of all debts of Irish banks pursuant to the Credit Institutions (Financial Support) Act 2008 (“the Act”) in 2008, it was imperative that this situation be stabilised.

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Published on February 21, 2019
Author:          Filed under: Analysis
 

I-CONnect Symposium on “The Euro-Crisis Ten Years Later: A Constitutional Appraisal”–Part I: The Eurozone Crisis and the Rise of the Portuguese Constitutional Court

[Editor’s Note: This is the first entry in our symposium on the “The Euro-Crisis Ten Years Later: A Constitutional Appraisal.” The introduction to the symposium is available here.]


–Teresa Violante, Goethe University Frankfurt and Max-Planck Institute for Comparative Public Law and International Law

The story of how the Eurozone crisis was particularly harsh on Portugal is well known. Its most visible side concerns austerity policies particularly following the international loan agreed with the International Monetary Fund (IMF), the European Commission (EC) and the European Central Bank (ECB). As the government’s report on the execution of the Adjustment Programme claimed, «these were the years of the deepest and most wide-reaching reforms in the history of our democracy».

Poverty increased near the most vulnerable parts of the population such as children and youngsters. Despite the entrenched belief that the least-off had been spared to the harshest consequences, a recent study shows that it was the poor who were most severely affected: whereas the highest incomes suffered an average decrease of 13%, the 10% lowest incomes endured a reduction of 25%.[1] General welfare and the provision of public services were also affected by increase in costs and cuts in their direct provision. Unemployment raised to the highest level registered under a democratic regime. From 7.6% in 2008 the figure skyrocketed to 16.2% in 2013 whereas the GDP decreased 7%. The budget deficit, on the contrary, decreased from 11% of the GDP in 2010 to 3% in 2017, when the Excessive Deficit Procedure against Portugal was finally closed.

The effects of the crisis are still unfolding.

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Published on February 20, 2019
Author:          Filed under: Analysis