e-News 2024/3

Editorial

Dear Colleagues,

On 29 November we convened for the third ACA-Europe seminar during 2024. This time it was the French Council of State that welcomed us to the premises of the Administrative Court of Appeal of Versailles for a seminar focusing on ethics and recruitment of members of the supreme administrative courts and the councils of state. Although the structures of our national systems and our practices vary, the discussion revealed that we have common values and similar goals also in these fields.

The day before the seminar we were treated to a visit to the Private Apartments of Louis XV and Louis XVI and the King’s Grand Apartment at the Palace of Versailles. I would like to offer my sincere thanks to President Didier-Roland Tabuteau and President Nathalie Massias for an excellent seminar and a highly appreciated contribution to the Finnish Presidency of the association. The importance of co-operation cannot be emphasized enough. I was glad to see that the European Network of Councils for the Judiciary was represented at the seminar.

The next seminar will be held in the Hague on 17–18 March 2025. There we will be looking into the role of advisory bodies, like councils of state, but also the role of supreme administrative courts aimed to improve practical effectiveness, proportionality, and fairness of legislation.

The Helsinki Colloquium on 26–27 May 2025 will focus on the judicial dialogue between the national supreme administrative courts and the European Court of Human Rights. I note with satisfaction your answers to the questionnaire covering the advisory opinion mechanism, climate change litigation and instrumentalized migration. I am convinced that these topical human rights issues will attract great interest and form a natural continuation of the themes discussed in Stockholm, Zagreb, and Inari.

I am very pleased to inform you that during its meeting in Versailles, the Board of ACA-Europe decided to submit to the General Assembly to be held in Helsinki on 27 May 2025 a resolution welcoming the Supreme Court of Ukraine as an observer. The Helsinki Colloquium will mark the end of the Finnish Presidency of the Association, and the baton, symbolized by the ACA Bell, will be handed over to the president of the Greek Council of State.

We live in a world of turmoil and uncertainty, but despite this, I believe we have all reason to look forward to the Year 2025. I wish you a peaceful holiday time!

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

Seminars and Board meeting

As 2024 draws to a close, we take a moment to reflect on the successful events hosted by ACA-Europe and look forward to the exciting initiatives planned for 2025. On 29 November 2024, ACA-Europe, in collaboration with the French Council of State, organized a seminar in Versailles, France, on the theme “Ethics and the recruitment of members of the Supreme Administrative Courts and Councils of State.”

The event focused on two key areas: ethics and recruitment. In the morning, the discussions centred on ethics, with one roundtable addressing the legal and institutional frameworks, and another exploring practical case studies to better understand the content of ethical rules. The afternoon sessions then shifted to the recruitment practices for members of the highest administrative courts. The general report, compiled in preparation for this seminar, as well as the national reports, are available here. A web summary is available here.

On the same day, ACA-Europe held its Board meeting in Versailles, providing a crucial opportunity for Board members to evaluate ongoing projects, assess achievements, and plan for the upcoming year. This meeting, alongside the seminar, marked a productive and collaborative conclusion to 2024.

Looking ahead to 2025, ACA-Europe is excited to organize several important events. Among the highlights is the upcoming seminar in The Hague, Netherlands, on 17 and 18 March 2025, titled “Contributing to the quality of legislation.” Organized in collaboration with the Councils of State of the Netherlands and Belgium, this in-person event will provide an important platform for dialogue and the sharing of best practices in legislative quality. The event will take place at the Council of State of the Netherlands, located at Kneuterdijk Palace in the heart of The Hague. A formal invitation and registration form were sent to ACA-Europe members on 7 December 2024. Please note that the registration deadline is Friday 27 December 2024, and strict compliance with this deadline is essential.

The seminar will cover several aspects of contributing to the quality of legislation, including the independent general legislative advisory function (including consultations with supreme administrative courts), constitutional review ex ante by advisory bodies and administrative courts, and judicial dialogue with the legislator. The precise topics and questions for discussion will be determined after analysing the responses to the questionnaire sent to ACA-Europe members on 20 September 2024, with national reports requested by 18 October 2024. A general report will be published on the ACA-Europe website in due course.

Looking further ahead, ACA-Europe has several key events on the horizon, including a board meeting on 25 May 2025 in Helsinki, followed by a seminar on 26 May 2025 addressing “Dialogue with the European Court of Human Rights: Advisory Opinions under Protocol No. 16 to the Convention and the Impact of the Court’s Judgments at the National Level,” and the annual General Assembly meeting on 27 May 2025. We look forward to meeting many of our members at one of our upcoming events!

Jurifast

The following decisions have been selected for you:

	Finland Ruling of April, 15 2024 This case concerns the deductibility by a Finnish company of the arrangement fee charged on the issue of a €300 million bond. At issue was whether the arrangement fee should be regarded as interest within the meaning of section 18a of the Finnish Corporate Income Tax Act. This would have limited the possibility of deducting these costs, in accordance with the interest limitation rules. The Finnish tax authorities initially took the view that the arrangement fee was interest and therefore subject to the deduction restrictions. In turn, the Helsinki Administrative Court upheld this decision, basing itself on a broad interpretation of the European rules to combat tax evasion (the ATAD Directive). The Finnish Supreme Administrative Court overturned the Administrative Tribunal's decision, ruling that the arrangement fees were not interest, and therefore did not represent a return on capital, but fell into the category of consultancy fees rather than financial expenses. The court's decision therefore allowed the company to deduct these arrangement fees in full from its taxes. This decision is based on a clear distinction between costs incurred in obtaining professional advice and those directly associated with debt financing. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4477
	The Netherlands Ruling of September 9, 2024 This case concerned an application for international protection from a Syrian national in the Netherlands. He stated that he had attempted to enter Poland from Belarus on three occasions, but had been sent back to Belarus each time. On his fourth attempt, he asked Poland for international protection. The foreign national did not want to return to Poland because he feared being subjected to “push-back" after being transferred to this Member State. On the basis of the information provided by the Syrian national and the Minister for Asylum and Migration, the Dutch Council of State concluded that the Minister was entitled to invoke the principle of inter-state confidence in Poland. Indeed, the information gathered did not show that the foreign national was at risk of treatment contrary to Article 4 of the Charter of Fundamental Rights of the European Union. The applicant's application was rejected. It follows that the Netherlands may continue to transfer to Poland asylum-seekers for whom this Member State proves to be the country responsible for processing their application, since there is insufficient evidence to establish that the Polish authorities will treat asylum-seekers transferred by the Netherlands, in accordance with the European Dublin Regulation, in breach of human rights. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4440
	Germany Ruling of September 5, 2024 This dispute concerns a chief of the Thüringer intervention police, on mission in Berlin, staying in a hotel. While the time spent travelling between the hotel and the scene of the intervention was counted as working time, the time spent after returning to the hotel until leaving the next morning was not. The Federal Administrative Court pointed out that, according to Directive 2003/88/EC, only two categories exist in EU law: working time and rest time. However, a national employer may count periods, qualified as rest periods under EU law, as working time because of the restrictions they impose on the employee. On an assignment lasting several days, the time between the end of one activity or trip and the start of the next day does not, in principle, constitute working time. However, a period may be recognised as such if the employee must be present in a place designated by the employer, available to meet his needs immediately. On the other hand, the absence of an obligation to remain on the premises or of significant constraints precludes classification as working time, even if the worker is subject to a period of on-call duty. In this case, the Court concluded that the periods spent by the staff member at the hotel between his return in the evening and his departure the following day did not meet the criteria to be classified as working time within the meaning of the European Directive or the applicable national rules, in the absence of significant restrictions during those times. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4473

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 237 members from 34 institutions.

Since the last e-news, 5 new collective questions have been asked and 9 countries have actively participated with 12 answers: Austria, Czechia, Estonia, France, Latvia, Luxembourg, the Netherlands, Poland and Slovakia.

The following topics were discussed:

• Asylum applications by persons with temporary protection status (1 answer)
• Hearing children in asylum/Dublin procedures (1 answer)
• Plan or projects (not) directly connected with or necessary to the management of Natura 2000 sites
• Dublin transfers to Belgium (3 answers)
• Confidentiality and data protection in OLAF internal investigations (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 6/24

National decisions of interest: Flash 3/24

Follow-up of preliminary ruling: Flash 4/24

Monthly case-law digest CJEU: September 2024 | October 2024

Judge Exchange

The 2024 judges’ exchange programme is proceeding smoothly, with the final traineeship reports due on 15 December 2024. At the beginning of 2025, the General Secretariat will plan the 2026 judge exchange programme: members offering places will be asked to come forward. The ACA-Europe General Secretariat is delighted with the continuing success and enthusiasm generated by this programme every year.

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

Spain Isabel Perelló Doménech is President of the Supreme Court and the General Council of the Judiciary of Spain since 4 September 2024. Born in 1958, she joined the judiciary in 1985 and was assigned to the Court of First Instance and Investigation in Mahón (Menorca) and the Provincial Court of Barcelona. A judge specialising in the administrative judicial branch since 1991, she also served in the Chamber for Contentious Administrative Proceedings of the High Court of Justice of Andalusia in Seville (1991-1992) and that of the National High Court (1993-1994 and 2001-2009). In addition, she was a counsel at the Constitutional Court (1994-2001). In 2009 she was appointed as judge of the Third Chamber of the Supreme Court, where she exercised her judicial functions until she was named president of the Supreme Court and the General Council of the Judiciary. She has participated in various courses on constitutional matters, comparative administrative law, telecommunications and constitutional case-law in gatherings organised by the General Council of the Judiciary on sport, regulation and justice. She has co-authored several works and collaborated on the book “La Europa de los Derechos: el Convenio Europeo de los Derechos Humanos” (Europe of Rights: the European Convention on Human Rights), published by the Centre for Political and Constitutional Studies.

Montenegro Valentina Pavličić, born in Podgorica, Montenegro, has recently been appointed as the President of the Supreme Court of Montenegro. She graduated from the Faculty of Law at the University of Montenegro in 1990 and passed the State Judicial Exam in 1997. Her distinguished career spans more than three decades, including significant roles such as judge in the Specialized Department for Organized Crime, Corruption, Terrorism, and War Crimes of the High Court in Podgorica and later as President of its Criminal Division. From 2015 to 2024, Ms. Pavličić represented Montenegro before the European Court of Human Rights (ECtHR) in Strasbourg, where she played a key role in ensuring the alignment of national legal practices with European human rights standards. She also serves as a national consultant for the Council of Europe for the area of Rule of Law in relation to implementation of ECtHR judgments in the national judicial system. Ms. Pavličić has been an active participant in numerous legal initiatives, serving as a lecturer and consultant on topics such as the rule of law, judicial efficiency, and the practical application of ECtHR standards. She has also been a member of key international working groups, including the Steering Committee for Human Rights and the Committee of Experts on the European Convention on Human Rights. Furthermore, she has published extensively on topics such as the protection of human rights, legal reforms, and the effective implementation of ECtHR judgments.

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 2024

The focus of the 2024 cross-sectional analysis is on “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.” During a second working group meeting on 25 October 2024, the cross-sectional analysis working group aligned on the scope of the analysis, finalized the methodology for the questionnaire, and established a clear timeline for the project.

This year’s analysis delves into how Supreme Administrative Courts ensure the effective enforcement of their rulings, addressing several key elements. It examines the importance of clear and precise judgments in facilitating enforcement, techniques to reduce the need for annulments and mitigate their effects while preventing abuse, and strategies to enhance the enforceability of judicial decisions within the judgments themselves. Additionally, it explores the follow-up on annulment decisions, focusing on the role of Supreme Administrative Courts in overseeing administrative actions taken in response. Broader mechanisms beyond the courts are also addressed, including administrative or political interventions, institutional mediation, and further jurisdictional actions to uphold res judicata.

The questionnaire was distributed to members this past week, and active participation is strongly encouraged. Deadline for participation is on Friday 31 January 2025.