e-News 2024/2

Editorial

Dear Colleagues,

I was very glad to see so many of you attend the Inari seminar in May. Convening in the northernmost corner of the European union gave insight into the living conditions beyond the Arctic circle. We took full advantage of the extraordinary nature as on the evening of arrival we experienced the midnight sun, and on the following day we enjoyed a pique-nique accompanied by the sound of the river Juutua.

A special feature of the Inari seminar was a joint symposium together with representatives of the Sámi parliament. The symposium, which focused on Climate, Environment, and Land use, broadened ACA-Europe delegates’ understanding of Sámi culture and means of livelihood. The visit to the Sámi Museum Siida, the European Museum of the year 2024, was enlightening, too.

The seminar - Mapping the Multilevel Protection of Fundamental Rights in European Administrative Courts - continued to explore the vertical interactions between national supreme administrative jurisdictions and the Court of Justice of the European Union and the European Court of Human Rights. The Foundational Principles of EU Environmental Law to National Administrative Courts’ Responsibilities and new case-law were also discussed.

The importance of ACA-Europe cannot be overestimated. Co-operation and discussion carry with them many benefits for the day-to-day work in the member courts as shown, for example, by a recent reference for a preliminary ruling by the Italian Council of State (C-224/24), and a speech by the President of the Supreme Administrative Court of Poland Jacek Chlebny at a seminar in Luxembourg, celebrating the 20th anniversary of the ten countries that joined the EU in 2004.

The Finnish ACA-Presidency has from the outset been a joint effort of the Finnish and Swedish Supreme Administrative Courts. In Inari I had the privilege of handing over to President Helena Jäderblom the Grand Cross of the Order of the Lion of Finland, conferred by the President of the Republic. President Jäderblom’s contribution has been remarkable both nationally and internationally.

The Supreme Court of Ukraine was invited to take part in the seminar in Inari, but unfortunately their participation did not materialize. However, I note with great satisfaction that in June the European Union opened accession negotiations with Ukraine. Subsequently, the President of the Supreme Court of Ukraine has lodged an application with ACA-Europe with a view to obtaining observer status. According to the Association’s Statutes the competence to decide on admission as an observer lies with the General Assembly.

The next ACA-Europe event will be organized on 29 November 2024 by the French Council of State. We will meet in beautiful Versailles to discuss ethics and the recruitment of members of the Supreme Administrative Courts and Councils of State. The seminar will be held at the seat of the Administrative Court of Appeal of Versailles.

I look forward to seeing you soon. Until then, I wish you an inspiring autumn.

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

Seminars and Board meeting

From 25 to 28 May 2024, the picturesque town of Inari, Finland played host to the latest ACA-Europe seminar, where members of our association gathered to continue the exploration of vertical interactions between national supreme administrative jurisdictions and the Court of Justice of the European Union and the European Court of Human Rights. This seminar built upon the insights gained during previous events in Stockholm and Zagreb, delving deeper into the complexities of multilevel protection of fundamental rights within European legal frameworks.

Inari’s seminar sought to clarify how national courts interact with European legal institutions and the mechanisms behind the vertical dialogue on fundamental rights protection. With the participation of 33 institutions, discussions centered on the overlap of individual rights enshrined in national constitutions, the European Convention on Human Rights, UN human rights conventions, and the Charter of Fundamental Rights of the European Union. This multifaceted approach reflects the reality that no definitive hierarchy exists between national and European legal regimes.

Building on the groundwork laid by the Stockholm seminar in October 2023, which examined the relationship between national courts and the CJEU's preliminary rulings procedure, and the Zagreb seminar in February 2024, which focused on conflicts between domestic and European court rulings, Inari provided fresh perspectives on how fundamental rights are interpreted across different jurisdictions. National constitutions, interpreted by entities like constitutional courts, often coexist with European institutions like the CJEU and the ECtHR, each playing analogous roles in their respective legal systems.

One of the seminar’s core outcomes was a general report based on a questionnaire answered by participating institutions, which is now available on the Association’s website. The responses to the 22-question survey, answered by no less than 33 institutions, highlight representative problems, solutions, and case law, which were discussed in-depth during the seminar.

As we reflect on the Inari seminar, it is evident that the dialogue between national and European courts remains crucial for understanding their evolving relationship. The seminar highlighted the importance of continued collaboration between these institutions and equipped participants with valuable insights and strategies to navigate the complex landscape of multilevel fundamental rights protection within their respective jurisdictions. A web summary will be provided on the Association’s website in due time.

We also look forward to welcoming our members to the next seminar, which will take place in Versailles, France, on 29 November 2024. This seminar will feature three round table discussions, focusing on two key topics: ethics and the recruitment of members of supreme administrative courts and Councils of State. Each round table will provide an in-depth exploration of these crucial themes, encouraging robust discussion and knowledge-sharing among participants. The deadline for registration was Friday, 17 May 2024.

Additionally, the French Council of State will host the next ACA-Europe Board meeting in Versailles on Friday, 29 November 2024. This in-person event, held over lunch during the seminar, will further foster collaboration and engagement among members.

Jurifast

The following decisions have been selected for you:

	The Netherlands Judgment of 17 July 2024 This case concerned an application for international protection by a couple of Libyan nationals accompanied by their six children. The couple considered that they were at increased risk of being a victim of indiscriminate violence in Libya because the husband had worked as a security guard for high-ranking politicians. The couple also considered that they were more likely to be a victim of indiscriminate violence because they had minor children. The Dutch Council of State referred to the judgment of the CJEU of 9 November 2023, in Case C-125/22, which held that even in the case of a country ravaged by indiscriminate violence resulting from an armed conflict, the individual situation of a foreigner must be taken into account in assessing whether he or she should be granted asylum. According to the Court, the individual situation can increase the likelihood of being a victim of indiscriminate violence. The more the individual situation of a foreign national increases the risk of indiscriminate violence, the lower the degree of indiscriminate violence must be for asylum to be granted. Only in the most exceptional situations of indiscriminate violence due to armed conflict in a country, in which everyone runs a real risk of suffering serious harm simply because of their presence, should the individual situation not be considered in the assessment. In the present case, the Council of State ruled in line with the judgment of the CJEU. It concluded that the security situation in Libya, and in Tripoli in particular, implies that the Dutch minister should have considered the individual situation of the family when deciding whether to grant asylum. Indeed, the Council of State considered that there is indiscriminate violence in Libya due to the armed conflict, but not to the extent that everyone is in danger simply because of their presence. The Council of State also considered that since the minister had sufficiently justified the reasons why the individual situation of this family was not sufficient to grant them asylum, the minister should not take new decisions regarding the family's asylum application. The foreigners were therefore rejected. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4430
	Italy Judgment of 30 April 2024 Environmental associations have served formal notice on the Lazio Region (Italy) and other authorities to intervene to prevent the deterioration of natural habitats in the Lake Vico nature reserve. These organisations based their action on article 6.2 of the Habitats Directive. The Lazio Region did not respond to the formal notice. The environmental associations lodged an appeal with the competent administrative tribunal, which rejected the appeal. The latter considered that the Region had not remained silent since it had assessed the deterioration of the habitats in question. The environmental associations lodged an appeal with the Italian Council of State. The latter ruled that the content of the measures to prevent and combat the deterioration of protected habitats was of a technical-discretionary nature. It pointed out that the European Commission had emphasised on several occasions that, under the Habitats Directive, Member States have an obligation to protect sites against deterioration, by adopting both measures to remedy damage and disturbance originating from outside and caused by man, and measures to neutralise natural developments that could lead to a deterioration in the conservation status of species and natural habitats in special areas of conservation. The Council of State also specified that when a site is identified as being in a state of deterioration, the competent authorities must take active measures to restore the initial state of the habitats. These measures may include the suspension of activities and the implementation of mitigation or repair measures, assessed ex post for their actual effectiveness. If the authorities fail to act, as in this case, an appeal against their implicit refusal is possible under article 117 of the Italian Code of Administrative Procedure. In this case, the Council of State ordered the Lazio Region to take action to protect the habitats of Lake Vico. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4416
	Belgium Judgments of 11 April 2024 These two cases concerned the granting of secondary refugee status to the parents of children recognised as refugees in Belgium. These parents did not individually meet the conditions for granting international protection. One case concerned the parent of a child born in Belgium, the other concerned the parent of a child born in the fugitive country. In the case where the family had been formed in Belgium, the Conseil d'Etat considered it necessary to refer questions to the Court of Justice of the European Union for a preliminary ruling on the applicability of Article 23 of Directive 2011/95 to the situation of the applicant, who invoked this provision, even though according to Article 2(j) of the said Directive, the members of the family of the beneficiary of international protection are only covered insofar as the family was already established in the country of origin. Assuming that Article 23 of Directive 2011/95 was applicable in this case, and in the case where the child was born in the country from which the child fled, the Council of State noted that in each of the cases, the claimants maintained that, in the absence of a valid transposition of this article into Belgian law, it should produce direct effect, requiring the Kingdom of Belgium to grant them international protection. However, the Conseil d'Etat expressed doubts about this contention, considering that Article 23 refers only to the granting of advantages defined in Articles 24 to 35 of the Directive, and that this advantage would constitute the possible limit of any direct effect. As the CE was required to give its final ruling, it nonetheless considered it necessary to put a question to the Court on this point. It added a supplementary question, suggested by the applicants, which also seemed relevant to the issue of maintaining the family unit through the grant of the aforementioned benefits. The Conseil d'État doubted the validity of the applicants' argument that the best interests of the child and respect for family life, by virtue of Article 23 of the Directive, should lead to the granting of international protection to the parents of refugee children, even though the latter did not individually fulfil the conditions necessary for such protection. It noted that such objectives could be achieved by granting a residence permit enabling the parents to reside legally in Belgium. However, because of its obligation to rule as the court of last resort, it considered it necessary to refer this question to the Court. The Court replied in both cases that Articles 20 and 23 of Directive 2011/95/EU must be interpreted as meaning that they do not require Member States to recognise the right of the parent of a child who has refugee status in a Member State to benefit from international protection in that Member State. The Court clarified, however, that the granting of a derived status is not contrary to the Directive but that Member States are not obliged to provide for such a grant based on Directive 2011/95/EU. In both cases, the applicants withdrew their appeal. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4432 http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4433

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 236 members from 34 institutions.

Since the last e-news, 11 new collective questions have been asked and 13 countries have actively participated with 55 answers: Austria, Belgium, Czechia, Estonia, France, Germany, Latvia, Lithuania, Luxembourg, the Netherlands, Poland, Serbia and Slovakia.

The following topics were discussed:

• Taxation of interest and royalty payments between associated companies (7 answers)
• Integration exams in country of origin (4 answers)
• Asylum Seeker's Right to Request Residence Permit (4 answers)
• Grounds for a residence permit (5 answers) - Remedy against an administrative contract (5 answers)
• Return decision during imprisonment for life (7 answers) - Hydroelectric power concessions (1 answers)
• Vetting process of a judge and obtaining security clearance (9 answers)
• Returning of Afghan asylum seekers to Afghanistan (3 answers)
• Extinction of objective liability of the user of the worker's service (4 answers)
• The “reformatio in peius” principle (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/

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 3/24 | Flash 4/24 | Flash 5/24

National decisions of interest: Flash 1/24 | Flash 2/24

Follow-up of preliminary ruling: Flash 2/24 | Flash 3/24

Monthly case-law digest CJEU: March 2024 | April 2024 | May 2024 | June 2024 | July 2024

2024 Rule of law report

On 24 July 2024, the Commission adopted the latest annual Rule of Law Report.

This report reflects close collaboration with national authorities and stakeholders and examines the same key issues across all Member States and four enlargement countries, using a consistent and transparent methodology. The qualitative assessment highlights significant developments since the July 2023 report, ensuring a balanced perspective on changes.

You can find the press release here and the full report along with related materials is available via this link. Additionally, a summary of the targeted stakeholder consultation outcomes is accessible here.

Judge Exchange

The judge exchange program for the current year is currently being implemented. Starting in January 2025, the General Secretariat will organize the implementation of the next judge exchange program, in accordance with the selection made by the Board in May 2024. Additionally, at the same time, the General Secretariat will start the process for the selecting candidates for the 2026 exchange program.

e-Library of European administrative law

The e-Library of European administrative law, available here, contains high-level judicial and scientific references that cannot be found anywhere else or that only have restricted distribution overview.

Call for contributions

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

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

2024 Rule of law report

Judge Exchange

Cross-sectional analysis

e-Library

Members' News

Agenda

Cross-sectional analysis

2023

Regarding the 2023 cross-sectional analysis, ACA presidents and contact persons had the opportunity to provide feedback on the final draft of the 2023 cross-sectional analysis, which focused on the topic: “Can the Supreme Administrative Courts save the climate (environment)?”. The feedback is currently being processed, and a final version will be distributed to members in the coming weeks and will also be available on the Association’s website.

2024

As for the 2024 cross-sectional analysis, the Board of ACA-Europe has selected the following topic: “Mechanisms and roles of Supreme Administrative Courts in ensuring the enforcement of judicial decisions, with a focus on decisions relating to EU law, human rights, and fundamental rights”.

The kick-off meeting for the 2024 cross-sectional analysis took place on Monday, 16 September 2024, in Paris, France, hosted by the French Council of State. It was a productive gathering where the working group aligned on key elements such as the scope of the analysis, the methodology of the questionnaire, the distribution of tasks, and the timeline.

The questionnaire is expected to be distributed to the members in mid-December.