ACA-Europe

e-News 2022/2

Editorial

Franco

Dear Colleagues,

As we reach the halfway mark of the first year of the Italian presidency of ACA-Europe, a first assessment of our activities seems particularly fitting.

The first seminar of the Italian Presidency on “Law, courts and guidelines for the Public Administration”, held in Fiesole on 4 and 5 October 2021, allowed us to outline the rules governing the interpretation and application of the law and investigate the legal instruments designed to guarantee the uniformity and homogeneity of the jurisprudence. The second seminar on “Judicial review of regulatory authorities”, held in Paris on 6 December 2021, made it possible to examine the specific issues that disputes relating to acts of regulatory authorities can raise before administrative courts.

More recently, with the General Assembly, held in Rome on May 2022, on “Techniques for the protection of private subjects in contrast with public authorities: actions and remedies - liability and compliance”, mutual knowledge of our respective systems was further improved. We have learned a great deal from each other, and I believe that each of these events was a moment of professional and human enrichment.

Thanks to the better common knowledge of our legal systems under the procedural profile, we are therefore ready to immerse ourselves in the exploration of particular hypotheses of protection before the administrative judge, such as the use of the clauses and general principles drawn from the EU legal system.

It is therefore my pleasure to invite you to our next event, which will be held in Madrid on 20 and 21 November. The seminar - as you well know - is organised by the Spanish “Tribunal Supremo” and ACA-Europe, under the auspices of the Italian presidency. This Seminar, which has the aim of deepening the open dialogue between the highest European administrative jurisdictions, will address an unprecedented and highly topical issue: the application of different principles or general clauses of law in the administrative legal system.

The variety and the different conception of the nature and functionality of the general principles of law in the different countries makes this seminar a unique opportunity to obtain an eminently practical vision of their judicial application.

For this reason, the Madrid seminar will allow us to strengthen our cooperation on aspects of great interest, analysing, on this occasion, the degree of convergence in the application of the general principles of law on the basis of the influence of European Union law and the effects of the horizontal dialogue between our higher national jurisdictions, which this seminar will certainly continue to stimulate.

Dear colleagues,

I would also like to take this opportunity to inform you about the meeting that took place on 7 September with MEPs in Brussels: an example of the profitable dialogue that exists between the various European judicial networks.

The meeting, in which ACA-Europe was also represented, was organised by the European Network of Councils for the Judiciary (ENCJ). In addition to our Association, those of the European Association of Judges (EAJ) and the Network of the Presidents of the Supreme Judicial Courts of the European Union were present (NPSJC).

The composite delegation first met with a group of members of the European Parliament (led by Ms. Katarina Barley, member of the Civil Liberties, Justice and Home Affairs Committee), and then with the European Commissioner for Justice, Mr. Didier Reynders.

The theme of the meetings was focused on the contribution that European associations of magistrates can bring to the Union’s activity aimed at verifying compliance in the Member States with European standards on the rule of law and the independence of the judiciary.

The Presidency of ACA-Europe intervened at both meetings to emphasise that the issue of the independence of the judiciary is not so much the “core business” of the ACA-Europe’s work, but rather a prerequisite for it. This is because in order to adequately verify the legitimacy of acts and the conduct of public authorities in their relations with private subjects, it is necessary for the judge to be not only culturally and professionally qualified but also fully autonomous from the other powers of the State, in compliance with the principle of separation of powers.

Among the proposals that emerged from the meeting, the one of greatest interest to the ACA-Europe, which has already been brought to the attention of our Board, is the idea of institutionalising regular meetings with the institutions of the Union, in particular with the Parliament, in order to make the acquisition of relevant data easier and possible interventions more timely.

It only remains for me to renew my invitation to you to attend the upcoming Seminar in Madrid, where we will have the opportunity to rekindle many of the discussions begun in Rome.

I look forward to seeing you in Madrid soon.

Franco Frattini
President of ACA-Europe
President of the Council of State of Italy

Seminars, Board meetings and General Assembly

The Association has been far from idle in the months following the last e-news, which were filled with a seminar in Rome, two Board meetings (one in Rome and one in Brussels) and a meeting of the General Assembly, also in Rome.

The Council of State of Italy hosted the first in-person meeting of 2022 of the Board of ACA-Europe at Palazzo Spada in Rome, Italy on Sunday 22 May 2022.

On 23 and 24 May 2022, a seminar was held in Rome on the theme “Techniques for the protection of private subjects in contrast with public authorities: actions and remedies - liability and compliance”. The seminar was organised by the Italian Council of State, in cooperation with ACA-Europe. The objective of the seminar was to provide a wider comprehension of the similarities and differences that exist among the various legal systems of the member States insofar as they apply to the situations to be dealt with by the administrative court, paying particular attention to the content and subject matter of the relative rulings. The seminar programme comprised three sessions on the following topics: (a) actions before the administrative judge (moderated by the First President of the Belgian Council of State Mr Roger Stevens), (b) Special procedures (moderated by the President of Section of the Italian Council of State Mr Luigi Carbone) and (c) Interim relief (moderated by the President of Section of the French Council of State, Ms. Martine de Boisdeffre). On Tuesday, the concluding remarks were delivered by President Frattini, First President Stevens, President Carbone and Section President de Boisdeffre. The General report and the national reports are available online. A web summary of the seminar is expected to be published soon.

The closing remarks of the seminar in Rome were followed by the General Assembly’s annual meeting.

On 15 September 2022, a meeting of the Board was held at the Council of State of the Kingdom of Belgium in Brussels, in hybrid form.

Looking to the future, our Association is delighted to highlight the second ACA-Europe seminar of 2022, which is organised by the Supreme Court of the Kingdom of Spain in collaboration with ACA-Europe. This event will take place on Monday, 21 November 2022 as an in-person event at Palacio de Justicia, seat of the Supreme Court of the Kingdom of Spain, in Madrid. The seminar will focus on “The application of principles and general clauses in the jurisprudence of administrative courts”. For preparation purposes of the seminar, a questionnaire was distributed among our members. The national reports are available online. The General report is expected to be published soon. The formal invitation letter of President Carlos Lesmes Serrano, a registration form and the preliminary programme were sent to the members on 23 September 2022. The deadline for registration is Friday, 14 October 2022.

Jurifast

These decisions have been selected for you:

Germany

Judgment of 21 April 2022

This judgment concerns a relevant subject in the context of the energy crisis and the search for alternative solutions to gas for heating, such as the firewood referred to in this judgment.

The subject of the dispute was the application of the reduced VAT rate on supplies of wood chips.

The Federal Finance Court questioned the exact concept of "firewood" and the delimitation of the applicability of a reduced tax rate and the meaning of the principle of fiscal neutrality for reduced tax rates.

The Court therefore referred a preliminary ruling to the European Court of Justice, which in its judgment of 3 February 2022 (case C-515/20) answered it.

The Federal Finance Court ruled on the basis of the CJEU judgment that:

  • A Member State which, pursuant to Article 122 of Directive 2006/112/EC, introduces a reduced rate of VAT for supplies of firewood, may limit the scope of that rate to certain categories of supplies of firewood by reference to the Combined Nomenclature, provided that the principle of fiscal neutrality is observed.
  • Shredded wood may be subject to a reduced VAT rate if it is firewood according to German regulations.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3964

Latvia

Judgment of 4 February 2022

This judgment concerns the issue of processing personal data without the consent of the data subject when the processing is necessary for the performance of a task carried out in the public interest

The applicant complained that he was seen and heard in a video report of the Consumer Rights Protection Centre, available on several websites. The applicant asked the Centre to stop broadcasting the report, to apologise publicly for the damage to his reputation and to compensate him for non-material damage.

The Supreme Court held that personal data, for the processing of which a person has not given his or her consent, may only be processed if an adequate result cannot be achieved by other equally effective means which would have a lesser effect on the fundamental rights of the persons concerned, in particular those to privacy and personal data protection.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4214

Finland

Judgment of 19 March 2020

The case concerns a so-called “herd management exemption” granted under the Hunting law for the killing of three wolves in two areas of Northern Savo. On appeal by the Nature Conservation Association, the Supreme Administrative Court was asked to rule on whether the decision of the Finnish Game Board to grant a derogation to shoot three wolves infringed Article 16(1)(e) of the Habitats Directive.

In a first decision of 28 November 2017, the Supreme Court referred three questions to the Court of Justice of the European Union for a preliminary ruling. The latter answered them in a judgment of 10 October 2019 (case C-674/1). According to this judgment the Court of Justice of the European Union held that the prevention of poaching could in itself be regarded as an objective justifying the grant of an exemption under Article 16(1)(e) of the Habitats Directive. However, the Court's judgment lists a number of obstacles under the Habitats Directive to the granting of an exemption from the prohibition on the deliberate killing of wolves on the basis of this paragraph.

On the basis of the CJEU ruling, the Supreme Administrative Court found in its ruling of 13 March 2020 that the objective of the exemption, namely the combat against poaching, had not been supported by clear and precise reasons or demonstrated on the basis of precise scientific data that the exemption would achieve its objective.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4232

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 227 members from 34 institutions.

Since the last e-news, 9 new collective questions have been asked and 12 countries have actively participated with 43 answers: Austria, Belgium, Czechia, Estonia, Finland, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Serbia and Slovakia.

The following topics were discussed:

  • Principle of sustainability in children’s rights (3 answers)
  • Judicial vacations at your court (9 answers)
  • Preliminary references: duty to state reasons (6 answers)
  • Transfers under Article 29(1) Dublin III Regulation (3 answers)
  • Decisions - Austria, Netherlands, Denmark (2 answers)
  • Definition of Residence (4 answers)
  • Accompanied minors who seek international protection (8 answers)
  • Protection of collective interests (5 answers)
  • Wheelchairs/vehicles - Combined Nomenclature (Invamed) (3 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/

Recent updates of CJEU ‘Flash News’ bulletins

From June 2022 onwards, all members of ACA-Europe are informed by ‘info flash’ of any recent updates of the CJEU ‘Flash news Bulletins’ published on the ACA-website.

For your convenience, you can find the most recent editions by clicking on the following links:

ECHR | COVID-19 | National decisions of interest

Judge Exchange

By 7 September 2022, the General Secretariat had received 37 applications from 12 ACA-Europe member institutions for the implementation of the 2023 Judges’ Exchange Programme.

In its board meeting on 15 September 2022, the Board approved a list of 18 candidates admitted to the internship on the basis of the criteria identified by the General Assembly in Paris and in Berlin.

The Board is satisfied with the significant success of the judge exchange programme, one of the “core-activities” of our Association.

A call for applications for the 2024 programme will be sent to our members in early January 2023.

Glossary of legal terms

At its meeting of 11 July 2022, the glossary working group agreed on the reorganisation of the terms proposed so far according to two large macro-areas:

  1. Administrative activity and organization and judicial organization
  2. Trial and remedies

Consistently, the members of the working group agreed to divide themselves into two subgroups, with the aim of both further expanding the terms included in each macro-area and improving the individual definitions in English and French. In the case of duplication, each subgroup will decide which definition best summarises the chosen term.

A limited glossary, comprising terms already completed, might be included in the questionnaire for the 2022 cross-sectional analysis.

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:anke.meskens@aca-europe.eu.

Members' News

Greece

Evangelia NIKA

Since July 2022, Evangelia NIKA has been appointed as President of the Hellenic Council of State.

Born in Athens in 1957, Mrs. Nika has obtained a Master’s degree in Law at the University of Athens (1979). As a Swiss government scholarship holder, she took courses in Swiss constitutional law and public economic law at the University of Geneva.

Prior to joining the Hellenic Council of State in 1984, she worked as a lawyer, admitted to the Athens Bar (1982-1984). In 1984, she was subsequently appointed Auditor [Assistant Judge] (1984), Master of Requests [Associate Judge] (1991), Councillor (2004), Vice-President (2019) and, since July 2022, President of the Council of State of Greece.

As part of her study leave (1996-1997) she took postgraduate courses at the University of London (University College of London) in European law and environmental law and obtained a Master’s degree in European law. From 2004 to 2020, she was a teacher at the National School of Judges (2004 to 2020). Furthermore, she presented reports at several congresses and seminars devoted to public law.

Germany

Prof. Dr. Andreas KORBMACHER

Prof. Dr. Andreas KORBMACHER is the President of the Federal Administrative Court of Germany.

Born in 1960 in Freiburg, he began his career as a judge at the Berlin Regional Court in 1988. In January 1990, he became a judge of the Berlin Administrative Court. In the same year, he obtained a doctorate of law from Freie Universität Berlin. In the following years, he was seconded as research associate to the Constitutional Court of the federal state of Berlin and to the Senate Department for Justice. In January 2003, he was appointed judge at the Berlin Higher Administrative Court (later on the Berlin-Brandenburg Higher Administrative Court). In May 2005, he assumed the role of presiding judge at the Higher Administrative Court. In 2007, Technische Universität Berlin appointed him honorary professor.

Following his appointment as judge at the Federal Administrative Court in November 2008, Mr Andreas Korbmacher became a member of the 9th Senate. Since May 2017, he is presiding judge of the 7th Senate. Its responsibilities include the law on environmental protection including immission control law, waste law, atomic energy law, mining law and waterways planning. On 22 May 2019, he became Vice president of the Federal Administrative Court. Since August 2021, he is additionally presiding the 10th Senate, which is responsible for freedom of information law.

On 8 September 2022, he became President of the Federal Administrative Court of Germany.

Albania

Sokol SADUSHI

Sokol SADUSHI is the Acting President of the Supreme Court of the Republic of Albania.

Sokol Sadushi was born on July 27th, 1963. He is married and has three children. In 1986, he completed his studies at the Faculty of Law, University of Tirana. He has exercised the legal profession as a prosecutor, university lecturer, lawyer and member of the Constitutional Court of Albania.

In 1991, he started teaching as administrative law lecturer at the Faculty of Law and from 1997 onwards at the Albanian School of Magistrates in Tirana. In 2006, he obtained “Doctor of Juridical Science” degree, and in 2013 he obtained the title of “Associate Professor” (Prof.Assoc.Dr.).

Mr. Sadushi is the author of many publications and research articles in the field of administrative law, constitutional law and human rights. He published the books “Administrative Law 2”, “Constitutional Control”, “Constitutional Justice in Development”, “Administrative Court and Legal Control on the Administration”, and “Procedural Administrative Law”. Moreover, he is co-author of the books “Commentary on the Code of Administrative Procedure”, “Comparative View on Civil Procedure”, “Comparative View of Administrative Law Issues”, and Commentary “On the Constitutional Reform in the Justice System (2016)”.

In April 1998, the Albanian Assembly elected Sokol Sadushi judge of the Constitutional Court of Albania, a position he held until July 2011. From May 2013 until July 2014, he held the office of the Rector of Luarasi University (private institution of higher education). In November 2014, he was elected Director of School of Magistrates and held this position until March 2020.

He was appointed judge to the Supreme Court of the Republic of Albania by decree no. 11452 of the President of the Republic, dated 11 March 2020.

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: anke.meskens@aca-europe.eu

ACA News

Optimized decision processing in Jurifast

One of the main goals of the newly founded Document Steering Committee (DSC) is to foster dissemination of administrative case law. Jurifast is one essential contribution to this. To enhance its usability, the DSC designed an optimized decision submission form that all documentation units of the member courts will start using in November 2022. This new form will not only bring a more standardized appearance but is intended to result in more concise, more consistent and better structured information for the user. Furthermore, the latter will allow further improvements to the automatic extraction and translation of this content for further improvements and will enable new features of the search engine in the near future.

The Supreme Court of Albania joins ACA-Europe as an observer

Following the submission of its application to join ACA-Europe as an observer on 28 September 2020, the General Assembly approved the resolution of the Board welcoming the Supreme Court of Albania as an observer on 24 May 2022.

As the highest judicial power in the Republic of Albania, the main mission of the Supreme Court is to review the decisions of courts of lower instances upon the request of the parties from a law enforcement perspective. The Supreme Court of Albania is located in Tirana and is presided by Acting President Sokol Sadushi.

ACA-Europe wishes to offer the Supreme Court of Albania a warm welcome on being a part of our Association.

Gender Impact Assessment

In order to respond to the European Commission’s concerns about gender, gender mainstreaming and gender equality, apparent from the evaluation summary report on the 2022 grant agreement proposal, the Secretariat General has set up a project on gender impact assessment, to the example of the ‘Gender Mainstreaming Toolkit’ issued by the European Institute for Gender Equality (EIGE), the results of which will be communicated to the General Assembly at its meeting in Naples, on Tuesday 27 June 2023.

If you have any queries regarding the gender project of ACA-Europe, do not hesitate to contact the content manager/ gender officer of ACA-Europe at anke.meskens@aca-europe.eu

Grant 2023

The programme and budget for 2023, as approved by the Board, have been submitted by the General Secretariat. We are now awaiting approval by the European Commission.

In this issue

Editorial

Seminars, Board meetings and General Assembly

Jurifast

Forum

Recent updates of CJEU ‘Flash News’ bulletins

Judge Exchange

Glossary of legal terms

Cross-sectional analysis

e-Library

Members' News

ACA News

Agenda

21 November 2022

 

Seminar – Application of general principles and clauses in the case law of contentious-administrative courts – Madrid, Spain

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

Cross-sectional analysis

2021

The 2021 analytical report, which carries out an analysis on the ‘The Supreme Administrative Courts in times of COVID-19 – 2021 edition’ is currently being finalised and will be published on the website soon. The metadata (i.e. national reports of the participating members and statistics), as well as the contribution of the Association to the 2022 EU Justice Scoreboard, are now available online.

2022

As was decided at the ACA-Europe General Assembly, a working group was launched to contribute to the EU Justice Scoreboard 2023. The Board approved the composition of the working group and the 2022 theme during its board meeting on 22 May 2022 in Rome. This year’s theme is “Fundamental rights in the perspective of the new generation of social rights.”.

As every year, the results of the study will be used to contribute to the 2023 EU Justice Scoreboard. A first meeting of the working group took place as an in-person event on 12 September 2022 in Warsaw. The meeting was hosted by the Supreme Administrative Court of Poland.

During this fruitful kick-off meeting, the working group agreed on the scope of analysis, division of the workload and timetable. Furthermore, as a starting point, the working group drafted a first version of a questionnaire. The final questionnaire will be sent to our members in the first half of December, with a deadline for participation foreseen in the course of the second half of January. Once finalised, the report will be published on our website and sent to all members.

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Enjoy the Indian summer!
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