ACA-Europe

e-News 2021/3

Editorial

Filippo

Dear Colleagues,

The European Union is a community of values and of law, which must be preserved in all Member States. The rights of Europeans under the Treaties must be protected, no matter where they live in the European Union. If we do not accept that all rulings of the European Court of Justice are binding for all Member States’ courts, we risk undermining the very foundations of the European project and of its legal system, and turning the participation in the European project into a “menu à la carte”, where only the beneficial aspects are accepted by State members.

The European Court of Justice, which will celebrate its 70th birthday next year, is one of the pillars of Europe and is, for the time being, heavily criticized. Thus, I believe it is the duty of each and every judicial network in Europe to defend its work and to defend the principle of the rule of law at this historic moment.

Thanks to the triangular mechanism, the Court of Justice transforms the common constitutional traditions into principles of European law, which, together with the fundamental rights as configured by the ECHR, become homogeneous instruments of review of public powers by national administrative courts, giving rise to a convergent protection of rights which, in the final analysis, outline a common statute of European citizenship.

Even if we firmly believe that differences in views on important aspects of European integration should always be addressed through a meaningful dialogue, in no circumstances may the supremacy of EU law be questioned. If each Member State is left to interpret the law in its own way, the Union itself risks disappearing.

But this is not all. Europe has more important issues to tackle than fighting among its own members. To cite just a few of the most pressing issues that cannot be postponed: ever increasing immigration flows, which are also the result of unresolved conflicts on Europe’s doorstep, environmental protection, and the successful management of COVID-19-pandemic. As supreme administrative judges, we are highly aware of the daily and delicate implications that these three major issues have on our daily work.

Coming back to the lively and enlightening discussions we had at our Association’s colloquium in Paris on 6 December last, which was devoted to litigation concerning the actions of regulatory authorities, I would like to underline that beyond the differences in the fields of competence or procedures of our various jurisdictions, these exchanges highlighted the challenges that such technical disputes represent for us, requiring varied expertise and original techniques of State intervention. We have learned from each other about the levers we can use in the organisation of our courts or our investigation methods to respond to these challenges. And it is in fact the hallmark of the administrative judge to adapt, in each era, to the new faces of public power, while guaranteeing the permanence of the rule of law.

Once more, sincere thanks to Vice-President Bruno Lasserre and to his outstanding staff for the exceptionally-well organised Paris seminar.

Dear colleagues, I would like to conclude this newsletter by sending my particular best wishes to Vice-President Bruno Lasserre, a distinguished colleague and friend, for his forthcoming retirement. His contribution within ACA-Europe but also within IASAJ has always been of an exemplary standard. In addition, it has always been a great pleasure to work with him and I am confident it will similarly be a pleasure to work with his successor and his/her team.

On behalf of ACA-Europe, the Italian Council of State, and all my colleagues who had the pleasure of working with him, I would like to express our esteem and wish him a bright future ahead.

It only remains for me to wish you and your families a Merry Christmas and a prosperous 2022 for our Association as well, looking forward to our next General Assembly and seminar in May 2022 in Rome!

Filippo Patroni Griffi
President of ACA-Europe
President of the Council of State of Italy

Seminars

A seminar on judicial review of regulatory authorities’ acts was held in Paris on 6 December 2021.

Regulatory authorities have gradually emerged as one of the new forms of State intervention. In the broadest sense, regulatory activities may refer to any administrative activity that seeks to reconcile interests that may be contradictory or to organise access to scarce resources in a manner consistent with general objectives. In this sense, the notion can refer as much to transversal authorities as to sectoral authorities, including national data protection authorities or authorities responsible for the marketing or evaluation of health products.

The ACA-Europe seminar organised in Paris examined the specific issues that disputes concerning acts taken by these regulatory authorities may raise in the administrative courts. Three main themes were addressed: Courts competent to hear disputes involving regulatory authorities, Admissibility of appeals against regulatory acts, and Judging appeals against regulatory acts.

The General report together with 24 national reports, is available online.

The summaries for the Leipzig colloquium and the Fiesole seminar are now online, in addition to the general reports and the national reports to both events, which were previously published:

Leipzig colloquium: summary | reports
Fiesole seminar: summary | reports

Colloquium Leipzig - Book publication

The 2019 seminars (Dublin, Berlin and Brno) were linked in terms of content. Together they form a tryptic that grants a unique insight into the decision making of the Supreme Administrative Courts. It was decided to process the results of these seminars into a comprehensive analysis. In the course of 2020, the original data were checked and updated by the member courts. Subsequently, the analysis was written with the help of the academic world. In the course of 2021, the analysis, titled “Supreme Administrative Courts' Jurisprudence in Europe”, was published in book form to make it available to the academic world and legal practitioners. It is available here.

Jurifast

These decisions have been selected for you:

Germany

Judgment of 30 March 2021

This judgment is a follow-up decision to a preliminary ruling of the Court of Justice of the European Union.

The Eritrean applicant sought refugee status in Germany after having been granted refugee status in Italy. In 2013, the Federal Office for Migration and Refugees, without hearing the applicant, took a decision refusing to grant him refugee status as he came from a safe country and ordered his deportation to Italy.

The applicant appealed against this decision to the Administrative Court. The Administrative Court rejected the appeal but annulled the decision to expel him to Italy.

The applicant lodged an appeal in cassation. The Court referred a question to the Court of Justice of the European Union for a preliminary ruling in order to clarify, inter alia, the compatibility of the absence of a personal interview with Directive 2013/32/EU.

The Court of Justice of the European Union ruled, in substance, that the absence of a personal interview is not compatible with Articles 14 and 34 of Directive 2013/32/EU, unless the applicant, in the appeal procedure, is heard in compliance with the basic conditions and guarantees provided for in Article 15 of Directive 2013/32/EU.

The Court, in its follow-up decision, therefore found the appellant's appeal well founded. It held, in essence, that

(1) The application of Paragraph 46 of the VwVfG (Administrative Procedure Act) is compatible with Articles 14 and 34 of Directive 2013/32/EU only in so far as the foreign national was given the opportunity to be heard in the proceedings before the asylum court.
(2) The administrative court may either order the Federal Office, in the proceedings before the asylum court, to hear the applicant in person, or to conduct the personal interview of the applicant itself, or to annul the contested decision of the Federal Office and thus give the Federal Office the opportunity to take a new decision on the asylum application after conducting a personal interview in the administrative proceedings.
(3) Where the court decides, at its own discretion, to conduct the personal interview of the applicant itself, it must, in accordance with, inter alia, Article 15(2) of Directive 2013/32/EU, conduct that interview under conditions which ensure appropriate confidentiality not only in fact but also in law.
(4) The separate personal interview and its conduct in accordance with the basic conditions and guarantees set out in Article 15 of Directive 2013/32/EU must be recorded in the minutes of the hearing or meeting.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3263

Netherlands

Judgment of 13 October 2021

This judgment concerns the application of Article 16(4) of Directive 2004/38/EC and the loss of the right of permanent residence after two years of absence from the host Member State.

The facts are as follows: a British woman spent her childhood in the Netherlands and had enjoyed the right of permanent residence as an EU citizen since 1993. In 2009 she moved to the UK to study and then to work. She currently lives and works in the UK. However, she comes to the Netherlands every year to visit her parents and friends but is not domiciled there.

The Secretary of State considers that she has lost her right of permanent residence under Directive 2004/38/EC (the Residence Directive) because she has not lived in the Netherlands for more than two years.

The Administrative Jurisdiction Division of the Council of State of the Netherlands would like to know from the CJEU whether, in accordance with Article 16(4) of Directive 2004/38/EC, any presence, however brief, in the host country of a Union citizen with a permanent right of residence is sufficient to 'interrupt' a period of absence from the host country of more than two consecutive years? If not, what aspects should be considered?

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4148

France

Judgment of 1st July 2021

The “Union fédérale des consommateurs - Que choisir” and the “Confédération consommation logement cadre de vie” have applied to the Conseil d'État for the annulment of the order of 25 March 2020 relating to the financial conditions for the termination of certain tourist travel and holiday contracts in the event of exceptional and unavoidable circumstances or force majeure, as well as various publications by the “Direction de l'information légale et administrative” and the “Direction générale de la concurrence, de la consommation et de la répression des frauds”.

The Council of State, in the context of this dispute, against the background of the COVID 19 crisis and its consequences for the cancellation of tourist trips, asks the following questions of the Court of Justice of the European Union:

- Is Article 12 of the Directive of the European Parliament and of the Council of 25 November 2015 on package travel and related travel services to be interpreted as requiring the organiser of a package tour, in the event of termination of the contract, to reimburse in money the full amount of the payments made under the package, or as allowing a reimbursement by way of equivalence, in particular in the form of a credit note in an amount equal to the amount of the payments made?
- If these reimbursements are in the form of a cash refund, is the health crisis linked to the covid-19 epidemic and its consequences for travel operators, who have suffered a drop in turnover that can be estimated at between 50 and 80% as a result of this crisis, and who account for more than 7% of the gross domestic product in France and, in the case of package tour operators, employ 30,000 people in France, with a turnover of almost 11 billion euros, are they such as to justify, and if so under what conditions and within what limits, a temporary derogation from the obligation on the organiser to reimburse the traveller for all payments made for the package within fourteen days of the termination of the contract, as provided for in Article 12(4) of the Directive of the European Parliament and of the Council of 25 November 2015 on package travel and related travel services?
- If the answer to the preceding question is in the negative, is it possible, in the circumstances described above, to vary the temporal effects of a decision annulling a national law which is contrary to Article 12(4) of the Directive of the European Parliament and of the Council of 25 November 2015 on package travel and related travel services?

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4130

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 218 members from 34 institutions.

Since the last e-news, 5 new collective questions have been asked and 11 countries have actively participated with 21 answers: Austria, Belgium, the Czech Republic, Estonia, France, Hungary, Latvia, Luxembourg, the Netherlands, the Slovak Republic and Sweden.

The following topics were discussed:

  • Another subsequent application for international protection (3 answers)
  • Court order to administrative bodies to pay the costs of proceedings (7 answers)
  • Defendant’s defence practice (procedural law)
  • Freezing or confiscating goods or financial means of civil society organisations (6 answers)
  • Principle of mutual trust in relation to illegal pushbacks at the borders of the EU (5 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/

Judge Exchange

The Judges’ Exchange Programme 2021 is currently ongoing, including the 2020 exchanges that had to be postponed due to the COVID-19-pandemic. In addition, the General Secretariat has recently launched the 2022 Judges’ Exchange Programme, as requested by the Board.

e-Library of European administrative law

The e-Library of European administrative law contains high-level judicial and scientific references that cannot be found anywhere else or that only have restricted distribution overview, on the hierarchy of norms, Fundamental rights, rule of law, Access to justice, Efficiency of administrative justice, European administrative law and comparative procedural law.

We are still looking for contributions 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? Let us know and we will be happy to add it to our online collection: info@aca-europe.eu.

Joint statement on the judicial independence in Afghanistan

On 20 December 2021, the Board of ACA-Europe endorsed the joint statement of the Network of the Presidents of the Supreme Judicial Courts of the European Union (NPSJC), the European Network of Councils for the Judiciary (ENCJ), the European Association of Judges (EAJ), and the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (ACA-Europe) on the judicial Independence in reference to the situation in Afghanistan. The aims of the joint statement are to speak out for the judges in Afghanistan and to reiterate the universal values for judicial independence and solidarity among the judiciaries.

Members' News

Latvia

Aigars STRUPIŠS

On June 15 2020, Aigars STRUPIŠS was confirmed as the Chief Justice of the Supreme Court of the Republic of Latvia.

Chief Justice Strupišs has been a Supreme Court judge since 2014. He has more than 20 years of experience in academic and research work and the practice of law. As an expert, he has participated in drafting legislative acts.

https://www.at.gov.lv/

Bulgaria

SAC BG Logo

On 1 December 2021, the Supreme Administrative Court of Bulgaria celebrated the 25th anniversary of the restoration of the institution on 1 December 1996. More information can be found here (translation available via google translate).

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: info@aca-europe.eu

ACA News

Dissemination strategy

To meet the European Commission’s demand for improved dissemination of its so-called deliverables (e.g., general reports, national reports and e-newsletters), both internally within the member institutions and externally to the legal and academic community and the general public, ACA-Europe would like to call upon the input of its members, by means of a short questionnaire, which will be sent out in spring 2022.

The results of this survey will be analysed by the General Secretariat and discussed by the Board on 23 May 2022, which will then decide on the new outlines of the dissemination strategy of the Association, originally set out in 2019.

Content management

As of 1 January 2022, ACA-Europe will have a new content manager, Ms Anke Meskens, who will succeed Ms Tessel Adriaensens. We thank Tessel for her dedication and wish her all the best with her future endeavours!

In this issue

Editorial

Seminars

Colloquium Leipzig

Jurifast

Forum

Judge Exchange

Cross-sectional analysis

e-Library

Joint statement

Members' News

ACA News

Agenda

23 May 2022

 

Seminar – Techniques for the protection of private subjects in contrast with public authorities: actions and remedies – Rome, Italy

24 May 2022

 

General Assembly – Rome, Italy

October 2022

 

Seminar – The general principles of law in the resolution of disputes by contentious-administrative jurisdiction – Madrid, Spain

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

Cross-sectional analysis

2021

At its online meeting on 31 May 2021, the Board of the Association decided to revisit the theme of last year’s report and once again devote the cross-sectional analysis to “the Supreme Administrative Courts in times of COVID-19-crisis”, which has lost none of its relevance as it continues to shape our daily lives, both personally and professionally.

The questionnaire was sent to the members on 9 December 2021. The deadline for participation is set for 31 January 2021.

 

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