ACA-Europe

e-News 2020/3

Editorial

Klaus

Photograph: Michael Moser

Dear colleagues,

At the end of September 2020, the European Commission for the first time present-ed its "Rule of Law Report" which will in future be provided annually to the Europe-an Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. The Report assumes that a high level of rule of law is of fundamental significance, not only for the Member States, but also for their cross-border cooperation and for the European Union. This is why the Report analyses the relevant developments in all 27 Member States - unfortunately not including the European Union itself - using objective and equal criteria, with a view to four "key aspects": the justice system, the anti-corruption framework, media pluralism and freedom, and "other institutional issues linked to checks and balances", such as legislative procedures, but also the judicial review of the constitutionality of a legal provision as well as the role of ombudspersons.

The general Report and the 27 country chapters are a rich source of material and extremely informative. They will certainly achieve their objective, which is, on the one hand, to strengthen mutual knowledge and understanding among Member States, and, on the other hand, to enable all Member States to identify the strengths and, possibly, weaknesses of their own systems by comparing them to the systems in other Member States, and to then further develop their own systems on this basis. This not only promotes a dialogue between the institutions of the Union and those of the Member States, but also between the Member States themselves - the best method to achieve an increasingly strong integration of the European Community.

All of this applies even though not all of the evaluation standards applied in the Re-port will meet with unanimous approval everywhere. An example for this is that the Report in its assessment of the various justice systems mainly applies the criterion of the independence of the justice system - which is uncontroversial -, but considers this to be better achieved the less influence parliament and government have on the appointment of judges. This ignores the fact that in some national systems, the appointment of judges requires democratic legitimacy for constitutional reasons, and therefore has to be based on decisions made by the relevant parliament. Also, the empirical principle that any system can be used one way or another is being shown little regard; the decisive aspect is not merely the letter of the law but rather also the spirit in which the law is applied by those in charge.

Others may find other issues to criticise. However, the fact that some aspects of the Report provoke objections is what makes it interesting and valuable. It is based on a cooperation of many institutions and organisations. ACA-Europe also contributed with its annual "Transversal Analysis". The Report is therefore strongly commended to everyone's attention.

I wish you all a very merry festive season and a happy new year, which will hopefully gradually deliver us from the dangers and restrictions of the Covid-19 pandemic!

With kind regards

Klaus Rennert
President of ACA-Europe,
President of the Federal Administrative Court of Germany

Seminars and Colloquium

As a result of the Covid-19 pandemic, the ACA-Europe seminars and the Colloquium planned for 2020 have been rescheduled to 2021. However, the preparation of these activities was not abandoned. As a result, the publication on our website of the reports drawn up within the scope of one of these activities proceeds as planned.

The reports for the Colloquium, ReNEUAL II – Administrative Information Management in the Digital Age, and the Leipzig seminar, Harmonizing Administrative Legal Documentation in Europe, are already available. For the Cross-sectional analysis 2019 and the Fiesole Seminar, Law, Courts and guidelines for the public administration, we expect to publish by the end of December. Keep an eye on our website!

The seminar on documentation will take the form of a virtual seminar to be held on 10/11 March, 2021. A webinar will be compiled in preparation for this event. This webinar will be available free of charge on the ACA-Europe website from February on. Access to the videoconference in March will be restricted to those who have registered for the seminar in Leipzig, which was to take place in April 2020. This conference will provide an opportunity for discussion. Join in, get to know each other's documentation practices and get inspired by experts in the field!

Jurifast

These decisions have been selected for you:

France

Judgment of May 5, 2019

This judgment concerns the issue of asylum applications made with the sole aim of thwarting a removal order.

An Albanian national without right of residence is arrested and held in detention. During detention he applied for asylum. The Prefect of Haute-Garonne issued an order that keeps the asylum seeker in detention. The administrative court of Toulouse overturned this decision which was itself annulled by the Administrative Court of Appeal of Bordeaux. The asylum seeker then appealed to the Council of State of France.

In its judgment, the Council of State considers that, pursuant to Article 8(4) of Directive 2013/33/EU, it is for the Member States to define in national law the grounds for justifying the detention of an asylum seeker. However, this Directive does not require, with regard to the ground provided for in Article 8(3)(d), that the objective criteria, on the basis of which it is established that there are reasonable grounds for believing that the asylum application made during detention is made for the sole purpose of delaying or preventing the enforcement of a removal order, be defined by law.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3879

Italy

Decision of April 27, 2020

This judgment concerns the conflict between rights and freedom, the right to entrepreneurship and the right to security, liberty and human dignity in times of COVID.

The Italian Council of State considers that a municipal ordinance prohibiting the opening of commercial premises where sales to the public are made through automatic vending equipment is legitimate. According to the Council of State, the interest of safeguarding collective health prevails over the economic interest pursued by a commercial operator resulting from the exercise of its activity during the period of the Covid epidemic.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3729

Germany

Judgment of 4 May 2020.

This is a judgment following a ruling of the Court of Justice of the European Union answering preliminary questions in the field of asylum.

With regard to the follow-up decision, it was held that as a Member State of the European Union Austria is not a third country within the meaning of Article 16a (2) first sentence of the Basic Law, Article 26a (1) first sentence of the Asylum Act (AsylG) of the above-mentioned regulations. The assumption of the Oberverwaltungsgericht thus violates federal law.

The question of whether the contested decision can be reinterpreted as a decision of inadmissibility under Article 29(1)(2) of the AsylG could not, however, be conclusively decided by the BVerwG in the absence of factual findings concerning the living conditions of persons recognised as entitled to protection in Bulgaria. The BVerwG therefore referred the case back to the Court of Appeal for further clarification.

To be continued

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3229

Latvia

Decision of 30 September 2020

The judgment concerns the processing of personal data by the Latvian judicial authorities.

The applicant considered that the practice of the administration, by which it grants judges and court employees access to non-anonymised judgments, is unlawful.

It was recognized in this case that the court may process the data it needs to carry out its judgment functions. However, the right of the court to process the data necessary for the decision does not imply that the processing of the data can be deliberate or uncontrolled.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3845

 

COVID-19

We invite you to take note of the initiative of ACA-Europe concerning the case law of national courts of justice relating to COVID -19. The objective is to gather this jurisprudence and make it accessible to all. You will find these decisions on JuriFast.

We invite you to inform ACA-Europe of the decisions taken concerning COVID19 at the following address: tessel.adriaensens@aca-europe.eu, or to send a message on the ACA Forum.

ACA-Europe reminds its members that it is very important that follow-up decisions (national decisions following a judgment of the Court of Justice in a preliminary ruling) are systematically introduced in JuriFast when the national decision asking the question is included in the database.

At the same time, the ECJ asks ACA-Europe to inform its members so that they systematically send all follow-up decisions directly to the Court at the address of the functional mailbox Follow-up-DDP@curia.europa.eu.

Remember, the Jurifast RSS feed can be obtained at the following address: http://www.aca-europe.eu/index.php/en/jurifast-en (possibility to subscribe to an RSS feed).

Forum

The forum of ACA-Europe currently has 213 members from 34 institutions.

Since the last e-news, 10 new collective questions have been asked and 15 countries have actively participated with 69 answers: Austria, Belgium, the Czech Republic, Estonia, Finland, France, Germany, Ireland, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, the Slovak Republic and Slovenia.

The following topics were discussed:

  • Covid-19 Yearbook (call for interest) (13 answers)
  • Questions regarding Article 37(2) of the Directive 2013/32/EU (2 answers)
  • Nationwide launch of the 5G network (5 answers)
  • Citizenship Directive 2004/38 - protection against expulsion and subsequent right of residence (4 answers)
  • A court as a participant in constitutional review (10 answers)
  • Temporary travel restrictions in connection with Covid-19 (9 answers)
  • Merger activities (7 answers)
  • Airborne equipment that can capture images (3 answers)
  • Dublin regulation III. Minors accompanied by other family members than their parents (7 answers)
  • Bilateral tax agreements - OECD Model Tax Conventions (9 answers)

Access to the forum is reserved for the members of ACA-Europe, who can register for it at the following address: http://www.aca-europe.eu/forum/

Tour of Europe

The Tour of Europe provides an analysis, in 76 points, on how the administrative justice system is organised in the different Member States of the European Union, the United Kingdom, Turkey, Serbia and Montenegro

In order to obtain the objectives, defined in the specific agreement between ACA-Europe and the European Commission, within the scope of the subvention granted by the European Union, members are warmly invited to update the information for their country by contacting the ACA-Europe team at the following email address: tessel.adriaensens@aca-europe.eu

Subsequent changes to the updated versions are also welcome.

Judge Exchange

This year ACA-Europe was able to organise only two exchanges out of the eighteen eligible for funding each year. In fact, despite the efforts made by ACA-Europe and the partner institutions to continue the exchange programme for judges in 2020, the health situation and the caution it required did not make it possible to carry out the programme in full.

Members' News

Romania

Mr. Florin IORDACHE took up appointment as President of the Legislative Council of Romania, succeeding Mr. Dragoș ILIESCU, who retired on the 1st of October of this year.

Florin IORDACHE

Mr. Iordache was born in 1960. He graduated from the Faculty of Mechanical Engineering and the Faculty of Law, both within the University of Craiova. He attended postgraduate courses at the National Institute of Public Administration, the National Defense College and the Romanian Diplomatic Institute. He obtained a PhD in the field of international economic relations.

Mr Iordache was a deputy to the Romanian Parliament for five legislatures, between 2000 and 2020, where he also held the position of Vice-President of the Chamber of Deputies, and between June and December 2016 he was President of the Chamber of Deputies. He was also a member of the Romanian Parliament's delegations to the Assembly of the Western European Union, the Parliamentary Assembly of the Council of Europe and the Mediterranean Parliamentary Assembly. Starting in November 2020, following his appointment by the Romanian Parliament, he became President of the Legislative Council.

Do you have an announcement that you would like to share with your colleagues from ACA Europe - e.g. a new chairman has been appointed or elected, an important change has taken place in the functioning of your institution or your institution is organizing an (international) seminar - do not hesitate to contact us: tessel.adriaensens@aca-europe.eu.

ACA News

Specific agreement 2021

On 3 December 2020, specific agreement No 101028521 - ACA_EU_NETW_2021 was signed by Mr Geert Debersaques, Secretary-General of the Association, and Ms Daniela Bankier, for the European Commission.

Thus, both the programme and the budget for 2021, drafted by the Secretariat-General in recent months, have been accepted by the European Commission and the Association is assured of working resources for the coming year.

E-Library

We are still looking to expand our library. Are you aware of any interesting publications? Did you write a contribution on a subject within the scope of European administrative law? Please contact our content manager!

Dissemination Strategy – Phase 2

In order to obtain the objectives defined in the specific agreement between ACA-Europe and the European Commission, within the scope of the subvention granted by the European Union, ACA-Europe developed a strategy for broader dissemination. This strategy was approved by the Board in 2019. With this strategy ACA-Europe aims to inform broader audiences of its activities and of the results of the network.

The strategy provides for a phased deployment and is based on networking. It aims to expand the existing network with three “target groups”: the national courts, the academic world and finally other institutions together with the general public.

In May 2019, the General Secretariat started the implementation of the dissemination strategy focussing on the e-newsletter. Thus, in phase 1, the dissemination network for the e-newsletter was expanded to the target group that is closest to our members, namely the national courts of ACA-Europe member states. In November of this year, phase 2 of the strategy was launched consisting of broadening our network to the academic world.

At present, we have details for over 100 academic institutions across Europe. Phase 2 runs until the end of April 2021. With the help of our members, we hope to expand our network even further by then.

In this issue

Editorial

Seminar and colloquium

Jurifast

Forum

Tour of Europe

Judge Exchange

Analysis

Members' News

ACA News

Agenda

10-12 March 2021

 

Videoconference – Harmonising Administrative Legal Documentation in Europe – Leipzig, Germany

31 May 2021

 

Colloquium – ReNEUAL II – Leipzig, Germany

1 June 2021

 

General Assembly – Leipzig, Germany

Autumn 2021

 

Seminar – Law, Courts and guidelines for the public administration – Fiesole, Italy

December 2021

 

Seminar – The Judicial review of Regulatory Authorities – Paris, France

For a complete overview of the calendar, see our website.

Analysis

The 2019 report, which carries out a “Qualitative and Quantitative review of the 2019 Seminars”, was sent to members in mid-November for final review. It is currently being finalised and will be published on the website by the end of December at the latest.

For 2020, the following (inevitable) topic was chosen: “The Supreme Administrative Courts in times of COVID-19 crisis – a lesson learned.” The results of the study will also be used to contribute to the 2020 EU Justice Scoreboard.

A second meeting of the working group took place on 12 October 2020. During this meeting, the final questionnaire was drafted. It was sent to the members on 1 December 2020. The deadline for participation is set for 15 January 2021.

 

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HAPPY HOLLIDAYS!
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Funded by the Justice programme of the European Union