e-News 2023/3

Editorial

Dear Colleagues,

The first seminar during the Finnish presidency was organized on 8–10 October by the Supreme Administrative Court of Sweden. The seminar in Stockholm focused on the preliminary ruling system and was in every sense a success.

We had the privilege of enjoying an analytical keynote speech by President Koen Lenaerts, followed by a vivid discussion between the delegates representing the national supreme administrative jurisdictions and the Court of Justice of the European Union (CJEU). President Lenaerts emphasized that the institution of preliminary rulings is, above all, a dialogue between equals and the procedure should be seen as a possibility rather than an obligation, a tool to help us develop our common European legal system. A topic generating a lot of interest was the question of whether and to what extent supreme courts applying a filtering mechanism are obliged to give reasons when rejecting a party’s request for a reference for a preliminary ruling. The well-composed general report and the sessions chaired by prominent academics led to good discussion and exchange of experiences.

Even though I have visited Stockholm many times, I was yet again struck by the beauty of the city. During the seminar we enjoyed a couple of bright autumn days by the shores of Lake Mälaren and the Baltic Sea. We visited the jubilee exhibition at the Royal Palace entitled “Vasa to Bernadotte 1523 – 1973 – 2023 Culture in Service of the Realm”, followed by a dinner at the House of Nobility, which included a performance by a fantastic violinist playing not only classical music, but – of course – also ABBA. The conference venue, a former church, gave the seminar a solemn atmosphere, and the acoustic did justice to musical performances by a youth choir and the judges´ band. The farewell dinner at the National Museum was superb. I wish to express my gratitude to my dear colleague President Helena Jäderblom and her team for impeccable arrangements and great hospitality.

The series of events under the auspices of the Finnish presidency will continue in Croatia. We will get an excellent start to the year 2024, when we meet in Zagreb on 18–19 February to discuss mechanisms of counteracting conflicting rulings from different domestic supreme courts, constitutional courts, as well as CJEU and ECtHR. Already at this stage I extend my heartfelt thanks to my dear colleague Inga Vezmar Barlek, President of the High Administrative Court, for making this possible.

The first event to be held in Finland will take place in Lapland, Inari, on 25–28 May 2024. For the time being we are with great interest awaiting your answers to the questionnaire Mapping the Multilevel Protection of Fundamental Rights in European Administrative Courts.

We are living in troubled times with two wars at the borders of the European Union and with the respect for rule of law declining globally. The mission of ACA-Europe is to strengthen the rule of law in the member states. In this context, I note that in the newest Rule of Law Index Estonia is ranked 9th:, which is a fantastic achievement for a country that regained independence just thirty years ago. I would like to mention that in November, a delegation from the Supreme Court of Estonia visited Kyiv to show support for Ukraine and its judicial system. I also note that the Supreme Court of Ukraine has been given the possibility to participate as an observer in the events of the Network of the Presidents of the Supreme Judicial Courts of the European Union.

Despite somewhat somber thoughts brought on by current world events, I believe that we have all reason to look forward to the Year 2024. I wish you a peaceful holiday time!

Kari Kuusiniemi
President of ACA-Europe
President of the Supreme Administrative Court of Finland

Seminars

As we approach the conclusion of another eventful year, we reflect on the ACA-seminars hosted by ACA-Europe in recent months.

As previously announced during President Kari Kuusiniemi’s inaugural address in the ACA-Europe General Assembly in Naples on the 27th of June 2023, the focus of the Finnish-Swedish presidency of ACA 2023-25 centers on the vertical dialogue between supreme administrative jurisdictions and the European courts, specifically the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR). Consequently, the seminar in Stockholm, hosted by the Supreme Administrative Court of Sweden on October 9th-10th, 2023, centered around the theme “Preliminary rulings of the Court of Justice of the European Union – from CILFIT to Consorzio.” This event marked the inception of a series of seminars during the Finnish presidency of ACA-Europe, conducted in close collaboration with Sweden. The seminar was preceded by the bi-annual Board Meeting at the premises of the Supreme Administrative Court of Stockholm on Sunday, 8 October 2023.

Throughout the seminar on 9 and 10 October 2023, participants delved into the intricacies of considering requests for preliminary rulings from the CJEU, sharing experiences and fostering a collaborative environment for knowledge-sharing. Notable figures, including keynote speaker President Koen Lenaerts of the CJEU, provided valuable insights. The discussions also encompassed recent developments, such as the opportunity to request advisory opinions from the ECtHR.

The General Report, based on responses from over 30 member institutions, provided a robust foundation for vibrant discussions during the seminar. Interestingly, the conclusions of the General Report were presented at the seminar's conclusion, drawing connections to the discussions that unfolded.

Member institutions shared intriguing information, highlighting both similarities and distinctions in the procedures of national courts concerning preliminary rulings.

The General Report on the obligation of national courts of last instance to make requests for preliminary rulings, as interpreted in case law, along with 30 national reports and a web summary, can be found on the association’s website.

As we look forward to 2024, we are excited about upcoming seminars that promise enriching discussions. Notably, the seminar organized by the High Administrative Court of the Republic of Croatia in collaboration with ACA-Europe, titled “Mechanisms of counteracting conflicting rulings from different domestic courts, the European Court of Justice, and the European Court of Human Rights,” is scheduled for February 19, 2024, in Zagreb, Croatia. Please note that the registration deadline was November 17, 2023

Furthermore, we extend our gratitude for the national reports submitted in preparation for this seminar, due by September 29, 2023. We eagerly anticipate sharing their results with you, fostering lively discussions.

Looking further on the horizon, on May 27, 2024, we will gather with fellow members in Inari, Finland, for a seminar that addresses the vertical dialogue from the perspective of the pluralist framework of European fundamental rights protection on the one hand and the national constitutional framework of fundamental rights on the other hand, organized by the Supreme Administrative Court of Finland in collaboration with ACA-Europe. The focus of this seminar, titled “Mapping the Multilevel Protection of Fundamental Rights in European Administrative Courts,” promises to be an insightful exploration of crucial topics. The questionnaire was sent to the members and was due on December 15, 2023.

We look forward to your participation and the opportunity to engage in meaningful discussions at this event in Inari, Lapland. Please note that the formal letter of invitation, agenda with information about cultural events, travel and accommodation, and registration form for the seminar will be sent to ACA members at the beginning of February 2024.

Jurifast

The following decisions have been selected for you:

	The Netherlands Judgment of November 22, 2023 The Administrative Jurisdiction Division of the Council of State of the Netherlands has recently submitted three cases to the Court of Justice of the European Union (CJEU) concerning the transfer period under Dublin Regulation (EU) no. 604/2013. These cases concern asylum applications and the suspensive effect of the transfer period after a provisional asylum measure, involving the Secretary of State for Justice and Security against the applicants. In this case, foreign nationals had applied for asylum in the Netherlands after having already sought protection in Italy and Romania or obtained an Italian Schengen visa. Under the Dublin Regulation, the Secretary of State asked Italy and Romania to take over these cases, which they accepted. The Netherlands had six months to hand over the individuals to the state responsible; otherwise, it became responsible for examining the applications. The CJEU answered a question referred for a preliminary ruling, concluding that national legislation authorizing a national court to adopt a provisional measure suspending the transfer period to the states responsible for asylum applications is not contrary to the Dublin Regulation, under certain conditions. Following this CJUE decision, the Litigation Division has clarified that provisional measures on appeal do not systematically suspend the transfer period in Dublin cases. If the Secretary of State wishes to return an asylum seeker to another EU member state under the Dublin Regulation, he has six months in which to do so. The Court can suspend this period by way of an interim measure on appeal, but this suspension depends on the decision of the court of first instance. This judgment is of significant importance as it clarifies the conditions under which an interim measure can suspend the time limit for transferring asylum seekers between EU member states, in accordance with the Dublin Regulation. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4136
	Estonia Judgment October 13, 2023 This case raises the question of whether the methodology for determining the favourable conservation status of wolf populations is favourable within the meaning of the Habitats Directive. An environmental organisation challenged the wolf hunting quota set by the Estonian Environment Agency, calling into question the favourable conservation status of the regional wolf population in Estonia. The Supreme Court referred a number of questions to the Court of Justice of the European Union, including the need to grant a favourable conservation status to a regional population of a species in a specific Member State. The Court asked whether account could be taken of the conservation status of the entire population in the territory of several EU Member States, in this case the Baltic States. The application also raises questions about cooperation between Member States to protect the population of a species, whether a population classified as "vulnerable" can benefit from a favourable conservation status, and whether economic, social and cultural needs, as well as regional and local characteristics, can be taken into account when determining the favourable conservation status of a species. Another Member State of the Region, Finland, had also submitted preliminary questions concerning its wolf population and the interpretation of the Habitats Directive. We reported on this in our September 2022 newsletter. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4334
	Germany Judgment February 25, 2022 In this case, a trustee in bankruptcy had requested tax information on bankrupt companies in order to examine revocatory actions. Although previous courts had found in favour of the trustee, the Federal Administrative Court in Leipzig overturned these decisions, stating that the right to information is not enforceable against the tax authorities due to legislative changes linked to the General Data Protection Regulation (GDPR). The case was referred to the Court of Justice of the European Union for a preliminary ruling, but the Court declined jurisdiction, and the Federal Administrative Court dismissed the appeals. The Federal Administrative Court held that in the context of a civil dispute and under the RGPD and the revised Tax Code, trustees in bankruptcy do not have the right to access tax information of an insolvent debtor from the tax authorities under the Freedom of Information Act. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3612

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 231 members from 34 institutions.

Since the last e-news, 7 new collective questions have been asked and 12 countries have actively participated with 34 answers: Austria, Czechia, Estonia, Finland, France, Germany, Latvia, Lithuania, the Netherlands, Poland, Slovakia and Serbia.

The following topics were discussed:

• Use of online information for the definition of “medicinal product by presentation” (2 answers)
• The interests rates (4 answers)
• Condition of sale of imported goods (3 answers)
• Additional paid professional activity of judges (5 answers)
• Jurisprudence on Directive 2014/31/EU (8 answers)
• Return directive - TCNs arrested at the border (5 answers)
• Asylum seekers - access to the labour market (7 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: Flash 7/23 | Flash 6/23

National decisions of interest: Flash 3/23 |

Follow-up of preliminary ruling: Flash 3/23

Monthly case-law digest CJEU: November 2023 | October 2023 | September 2023

Judge Exchange

The 2023 judges exchange program was concluded in December. ACA-Europe is pleased with the funding for the 18 judge exchanges authorized by its Board.

Additionally, the implementation of the 2024 judges exchange program will commence in January 2024, and concurrently, the General Secretariat will organize the selection for 2025 in early January 2024.

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.

The most recent contributions include:

• European Commission - DG Justice and Consumers, 2023 Rule of Law Report, COM (2023) 800 final, Brussels, 2023
• S. Thin, Guardians of Legality? The International Judicial Function in an Era of Community Interest, 25 May 2023, Nordic Journal of International Law, Brill Publishers.

Have a look at our updated e-library here.

We are actively seeking contributions to further enhance our collection. ACA-Europe welcomes submissions on a range of topics, including the hierarchy of norms, fundamental rights, the rule of law, access to justice, efficiency of administrative justice, European administrative law, and comparative procedural law. We strongly encourage submissions from both academic and policy/practice-based perspectives.

Are you acquainted with any noteworthy publications? Have you authored a piece related to European administrative law? Inform us, and we would be delighted to include it in our online collection. Reach out to us at anke.meskens@aca-europe.eu.

Members' News

Albania ACA-Europe is pleased to inform you that Sokol Sadushi, member of the Supreme Court of Albania since March 11th, 2020 and Vice-President of the Supreme Court since July 7th, 2020 has been elected President of the Albanian Supreme Court by the General Meeting of the Judges of the Court on October 17th, 2023, by an absolute majority of votes of all Supreme Court judges. 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.

If you have news to share with your ACA Europe colleagues, whether it's the appointment of a new chairman, a significant change in your institution's operations, or the organization of an (international) seminar, feel free to reach out to us at anke.meskens@aca-europe.eu. We welcome your updates and contributions.

In this issue

Editorial

Seminars

Jurifast

Forum

Recent updates of CJEU ‘Flash News’ bulletins

Judge Exchange

Cross-sectional analysis

e-Library

Members' News

Agenda

Cross-sectional analysis

In September, the theme for this year's cross-sectional analysis was determined during the kick-off meeting of the 2023 cross-sectional working group in Leipzig, Germany. The focus of the 2023 cross-sectional analysis is on the theme "Can the Supreme Administrative Courts save the climate (environment)? Efficiency and effectiveness of the judicial review by Supreme Administrative Courts dealing with environment and climate cases, including average time, interim measures, enforcement of judicial decisions and, if applicable, breaches of European Union Law."

The objective of this year’s cross-sectional analysis is to examine how Supreme Administrative Courts address alleged failures in governmental action towards achieving the goals of the Paris Agreement. It also explores the complexities of national laws influencing climate considerations and potential conflicts between climate-friendly measures and other environmental aspects.

The questionnaire was distributed to members on December 20, 2023 and the deadline for participation is set for January 19, 2024.

Given the significance of this topic and the importance of extensive input, active participation in the questionnaire is highly encouraged. Your valuable input will contribute to a comprehensive understanding of the challenges and dynamics surrounding the judicial review of environmental and climate-related cases by Supreme Administrative Courts.