ACA-Europe

e-News 2021/1

Editorial

Klaus

Photograph: Michael Moser

Dear colleagues,

In February 2020, the United Kingdom left the European Union. BREXIT has had an impact on ACA-Europe as well. In the run-up to the withdrawal, I talked to our friends at the British Supreme Court, discussing ways and means of continuing their valuable work in our Association. Accordingly, when BREXIT happened, the Supreme Court asked to be able to continue to participate in ACA-Europe with the status of a Guest Member, similar to the Swiss Federal Supreme Court and the Norwegian Supreme Court. This wish is reasonable, and I strongly support it. Unfortunately, our Statutes do not provide for such a mere change in status; what would be required would be a withdrawal and new admission. This would not do justice to this situation, and our British friends can hardly be expected to follow that process.

Our Statutes also fail to provide a solution for another issue we are currently facing: The Slovak Republic has decided to hive off a special Supreme Administrative Court from its previously uniform Supreme Court. The President of the Supreme Court therefore asked me to be permitted to transfer the ACA-Europe membership to the new Supreme Administrative Court. Similar endeavours were made in Hungary, even though they have been given up in the meantime. I believe that a transfer of membership following a court structure reform in a Member State of the European Union would be reasonable and appropriate. Unfortunately, our Statutes are silent on this.

Finally, the Covid pandemic has also disclosed entirely different ways of improving our Statutes. For instance, they currently do not expressly provide for the option of conducting Board meetings or a General Assembly "online". They merely provide that the Board may take decisions in written circular procedures in emergencies or cases of minor importance. In order to be able to conduct a General Assembly online, we would have to rely on the general rules of Belgian law. Otherwise, the Statutes assume that meetings will be held with physical attendance. As this was impossible in 2020, the two-year term of the current Board members was simply extended by one year. However, that is not satisfactory.

This is the reason why we have asked the General Assembly to revise the Statutes, which date back to the year 2000. In this context, not only the three issues discussed above are intended to be solved. But at the same time, the Statutes are to be updated, i.e. obsolete rules are to be removed and outdated provisions are to be adapted to the current practice in our Association. In addition, the Statutes must be adapted to currently applicable Belgian law governing associations and corporations. I would like to remind you that ACA-Europe is an association under Belgian law. Current Belgian law requires that the statutes of an association be reviewed within a certain period of time for their continuing compliance with Belgian law.

Therefore, we will have to deal with our own Statutes. I know that this is a little-loved task. However, our next General Assembly will also have other, more interesting topics. In the Colloquium, for instance, we want to discuss a highly topical issue from the ReNEUAL project; I would like to thank you very much for your active participation in the preparatory questionnaires. Furthermore, we want to elect a new president and a new vice-president. Unfortunately, the Covid pandemic again this year does not allow us to meet in Leipzig from 30 May to 1 June 2021 as originally planned. Last year, we already had to postpone the General Assembly. However, as a further postponement cannot be considered, the Colloquium and the General Assembly will take place this time as a video conference on 31 May 2021. I look for-ward to seeing you all again "virtually".

With kind regards

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

Seminars, Colloquium, Board and General Assembly

The reports for the Cross-sectional analysis 2019 and the Fiesole Seminar, Law, Courts and guidelines for the public administration, are available online.

The online seminar Harmonising Administrative Legal Documentation in Europe? was held on 10 and 11 March, 2021. The objective was to find out if and how documentation units of ACA-Europe members can work together more closely in order to achieve a better content-based indexing of judgments and of other legal information. It was concluded that a permanent ACA Documentation Steering Committee that is rooted in ACA-Europe's organisational structure should be set up. Furthermore, collaboration ideas suitable for adoption of a work programme for the steering committee were identified. The report and a webinar are available online.

For those who could not join in, a recording of the video conference will be available shortly.

The questionnaire for the preparation of the seminar organized by the Council of State of France in cooperation with ACA-Europe in Paris, on 6 December 2021, which will address The Judicial review of Regulatory Authorities, was sent to the members on 19 March. Deadline for participation is 31 May. Invitation, agenda and registration form will be sent at a later stage.

Due to the exceptional circumstances related to the COVID-19-pandemic, the Colloquium, the General Assembly and the Board will be organised as a video conference on 31 May 2021. The invitations, agendas and registration forms for these events will be sent in the second half of April.

Jurifast

These decisions have been selected for you:

France

Judgment of December 22, 2020

This judgment concerns the issue of personal data protection.

An association asked the interim relief judge of the Paris administrative court to suspend the execution of the decision of the Paris police prefect, revealed by testimonies, photographs and videos disseminated by the press and by individuals on social networks, to use drones for administrative police purposes, in particular during demonstrations on the public highway. The association also requested, under penalty of a fine, that the Prefect of Police be ordered to immediately cease, as of the date of delivery of the order, capturing images by drone, recording them, transmitting them or exploiting them and destroying any images already captured in this context. By order No. 2017540/3/5 of 4 November 2020, the interim relief judge of the Paris Administrative Court rejected this request.

By an appeal to the litigation Secretariat of the Conseil d'État, the association asked the interim relief judge of the Council of State, in particular, to annul this order and to grant its requests of first instance.

The authority explained that a device allows only images that have been blurred to be sent back to the operational management. This measure is one of the operations in an overall data processing system, from the collection of images by the drone to their transmission to the command room, after transmission of the streams to the blurring server, decomposition of these streams image by image for the purpose of identifying those that correspond to personal data in order to carry out the blurring operation, and then recomposition of the video stream containing the blurred elements.

The French Conseil d'État upheld the appeal, ruling that since the images collected by the drones are likely to contain identifying data, the fact that only the data processed by the blurring software reaches the command centre does not alter the nature of the data being processed, which must be regarded as personal data.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4048

Italy

Decision of January 11, 2021

The Council of State, as an urgent precautionary measure, stated that a Region cannot proceed, in conflict with the less restrictive measures laid down at national level, with the general closure of schools, unless against "the scientific evidence highlighting the connection between active outbreaks on the territory and the impact of school activity in-presence "in the various areas of the regional territory. The Council also added that "problems relating to transport (movement of persons) - which can be resolved with diligent and effective administrative commitment in the services concerned - cannot justify the serious compression of constitutionally protected rights of the students concerned".

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3975

Belgium

Judgment of 16 May 2019 and judgement of the CJUE 11 February 2021 (C-407/19)

In the case, two companies, which carry out port operations in Belgium and abroad, requested the Raad van State (Council of State, Belgium) to annul that 2016 royal decree, being of the view that it impeded their freedom to engage dockers from Member States other than Belgium to work in Belgian port areas.

The Council of State decided to ask the Court about the compatibility of these national rules, which maintain a special regime for the recruitment of dockworkers, with the freedom to provide services (Article 56 TFEU) and the freedom of establishment (Article 49 TFEU). In addition to answering this question, the Court was asked to identify additional criteria to clarify the conformity of the dockworkers' regime with the requirements of EU law.

In response to the various questions referred for a preliminary ruling, the Court of Justice of the European Union (Judgment of 11 February 2021 C-407/19) held that a legislation which reserves dock work to recognised workers may be compatible with EU law if it is aimed at ensuring safety in port areas and preventing workplace accidents. However, the intervention of a joint administrative committee in the recognition of dockers is neither necessary nor appropriate for attaining the objective pursued.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3977

Latvia

Decision of 8 march 2019 and judgment of the CJUE 29 October 2020 (C-243/19)

This case concerns the issue of prior authorisation for hospital treatment in another Member State and freedom of religion.

The applicant's son, who suffers from congenital heart disease, was to undergo a medical procedure in Latvia involving a blood transfusion. He is a Jehovah's Witness and therefore opposes any blood transfusion during this procedure. Since in Latvia this procedure is not performed by an infusion method without blood transfusion, he asked the National Health Service to allow him to receive specific elective health care in another EU Member State.

The Latvian Ministry of Health refused to issue an authorisation allowing the applicant's son to receive health care covered by the Latvian State budget in another Member State.

The applicant appealed to the Latvian Supreme Court against this refusal. In this context, the Supreme Court referred questions to the Court of Justice of the European Union for a preliminary ruling.

The reference for a preliminary ruling concerns the interpretation of Article 20(2) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, Article 8(5) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare (OJ 2011 L 88, p. 45), Article 56 TFEU as well as Article 21(1) of the Charter of Fundamental Rights of the European Union (hereinafter 'the Charter').

The CJEU in a judgment of 29 October 2020 (C-243/19) held that insofar as the second condition in the second sentence of Article 20(2) of Regulation 883/2004 consists exclusively in examining the patient's medical condition, history, probable course of illness, degree of pain and/or nature of disability and therefore does not involve taking into account the patient's personal choice of care, the decision of the Latvian authorities to refuse to issue the S2 form cannot be considered incompatible with that provision.

That being so, where the Member State of residence of the insured person refuses to grant the prior authorisation provided for in Article 20(1) of Regulation No 883/2004, that Member State is implementing Union law within the meaning of Article 51(1) of the Charter, so that it is bound to respect the fundamental rights guaranteed by the Charter, including in particular those enshrined in Article 21 thereof.

The CJEU goes on to hold that the failure to take account of the applicant's religious beliefs appears to be a justified measure in the light of the legitimate objective of protecting the financial stability of the sickness insurance system, which does not exceed what is objectively necessary for that purpose and satisfies the requirement of proportionality.

The CJEU answers the first question by stating that Article 20(2) of Regulation No 883/2004, read in the light of Article 21(1) of the Charter, must be interpreted as not precluding the Member State of residence of the insured person from refusing to grant him the authorisation provided for in Article 20(1) of that regulation where, in the absence of such an authorisation, the insured person would be unable to pay the costs, (1) of that regulation where, in that Member State, hospital treatment, the medical effectiveness of which is beyond doubt, is available, but the insured person's religious beliefs disapprove of the method of treatment used.

The CJEU answers the second question by stating that Article 8(5) and (6)(d) of Directive 2011/24, read in the light of Article 21(1) of the Charter, must be interpreted as precluding the Member State of affiliation of a patient from refusing to grant him the authorisation provided for in Article 8(1) of that directive where, in that Member State, a hospital treatment the medical efficacy of which is beyond doubt, is available in that Member State but the patient's religious beliefs disapprove of the method of treatment used, unless that refusal is objectively justified by a legitimate aim relating to the maintenance of health-care capacity or medical competence and constitutes an appropriate and necessary means of attaining that aim, which it is for the national court to verify.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3567

 

COVID-19

ACA-Europe aims to gather the case law of national courts of justice relating to COVID -19 and make it accessible to all. You will find these decisions on JuriFast. We invite you to inform us of the decisions taken concerning COVID-19 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 201 members from 34 institutions.

Since the last e-news, 10 new collective questions have been asked and 14 countries have actively participated with 59 answers: Austria, Belgium, the Czech Republic, Estonia, France, Germany, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, the Slovak Republic, Slovenia and Sweden.

The following topics were discussed:

  • Remuneration of judges for the additional workload (7 answers)
  • Conservation des données de connexion - Retention of traffic data (2 answers)
  • Compensation for special working conditions (3 answers)
  • Collection of milk (Regulation No 561/2006) (4 answers)
  • Application of the UN Convention relating to the Status of Stateless Persons (9 answers)
  • Suspensive effect of administrative actions (5 answers)
  • Initiation of administrative proceedings (6 answers)
  • Access to sunlight as restriction / limitation in construction / planning law (7 answers)
  • Competence / jurisdiction of administrative courts in social security matters (10 answers)
  • Interpretation of Article 16(4) of Directive 2004/38/EC (loss of permanent residence) (6 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

The core programme of ACA-Europe suffered - like many sectors - from the pandemic that hit Europe in 2020. Only two exchanges could take place in 2020. Insofar as possible and with the agreement of the member institutions concerned, the remaining internships were postponed to 2021.

ACA-Europe therefore hopes that the 18 exchanges it will finance in 2021 can be completed by the end of the year. At present the secretariat is continuing the selection procedure for the remaining places to be filled.

Members' News

Malta

Joseph Azzopardi retired as Chief Justice of Malta in April 2020. He was succeeded by Mark Chetcuti.

The Chief Justice Mark Chetcuti was born in Sliema, Malta, on the 4th February 1958. He graduated with a doctorate degree in law from the University of Malta in 1981. He is married to Ingrid and has one daughter Clara.

Immediately upon graduating he set up his own law firm specialising in Civil law, Family law as well as local and international arbitrations.

He was an accredited arbiter in the Malta Arbitration Centre. He was also Chairman of the Appeals Tribunal for Controlled Companies, and member of the Refugee Appeals Board.

He was elevated to the Bench in 2010 and up to his present appointment was assigned duties in general civil law cases and constitutional first instance cases. Intellectual property, trademarks and maritime law cases as well as appeals from planning law decisions were and are at present still in his exclusive remit. He is also at present the presiding judge in competition law issues and the Patents Court.

In 2020 he was appointed Chief Justice by unanimous decision of Parliament in which capacity he is now President of the Constitutional Court, the Superior Court of Appeal in Civil and Commercial matters and the Superior Criminal Court of Appeal. Amongst his other administrative duties he is Vice-President of the Commission for the Administration of Justice and President of the Judicial Appointments Committee.

Hungary

Varga

Prof. Dr. András Varga was nominated President of the Hungarian Supreme Court on 2 January 2021.

After his studies, András Varga pursued an academic career and worked as a prosecutor. He lectured at several universities. Currently he is affiliated to the Pázmány Péter Catholic University where he is prodean for the Faculty of Law and Political Sciences. In 2013 he became a member of the Venice Commission. He was Justice to the Constitutional Court of Hungary from 2014 until 2020, when he joined the Supreme Court.

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 2020

The final report on the implementation of the activities listed in the Specific agreement for 2020 between the European Commission and ACA-Europe was uploaded to the European Commission’s electronic platform by the General Secretariat at the end of February 2021. It is currently being analysed by the Commission’s services.

Framework partnership agreement 2022-2025

The General Secretariat has started preparing a proposal to be submitted under the call, launched by the European Commission, “for 4-year Framework Partnership Agreements to support European networks active in the area of facilitating and promoting judicial cooperation in civil and/or criminal matters and/or in the area of access to justice”. Deadline for submission is 6 May.

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 170 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, colloquium, board and general assembly

Jurifast

Forum

Tour of Europe

Judge Exchange

Analysis

Members' News

ACA News

Agenda

31 May 2021

 

Colloquium – ReNEUAL II, Video Conference

31 May 2021

 

General Assembly, Video Conference

Autumn 2021

 

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

6 December 2021

 

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

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

Analysis

At the beginning of December 2020, the questionnaire for the annual cross-sectional analysis, on the topic of “The Supreme Administrative Courts in times of COVID-19 crisis - a lesson learned”, was sent to all members of which, by the end of January, 28 had participated.

The report written by the working group based on the collected data will be sent to the contact persons during the month of April for possible feedback. On 31 May, the date of the colloquium and General Assembly, it will be published on the website, where it will be freely available to everyone.

 

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