ACA-Europe

e-News 2022/1

Editorial

Franco

Dear reader,

The battle for Ukraine unfolding before our eyes might be the most transformational event to occur in Europe post-World War II. Since 24th February, history has been running at breakneck speed. Where it will lead, we do not know and any prediction is – at the moment – fraught with complexities.

For us Europeans, who for three generations have banished war from the horizon, with the exception of the bloody war in the former Yugoslavia, the trauma has been particularly violent.

The board of ACA-Europe, as well as other European judicial associations, promptly condemned the brutal and illegitimate Russian aggression against Ukraine, stressing once again the values that underlie our organisations and which, now more than ever, must become the guiding star by which to navigate these stormy seas in the years ahead.

My sincere wish, on behalf of all ACA-Europe members, is that diplomacy will find, in a reasonably short time, a solution to this conflict, which is in serious and real danger of spiralling out of control.

Dear colleagues, this edition of the e-news comes out on the eve of the third seminar of the Italian Presidency “Techniques for the protection of private subjects in contrast with public authorities: actions and remedies - liability and compliance” and of the ACA-Europe General Assembly, both of which will take place in Rome at Palazzo Spada, seat of the Italian Council of State, on 23rd and 24th May 2022.

Last year the Italian Presidency of ACA-Europe was inaugurated in Fiesole with the seminar entitled “Law, Courts and guidelines for the public administration” and continued with the seminar organised in December in Paris entitled “The judicial review of regulatory authorities”.

Both events provided an opportunity to start exploring the potential of the “horizontal dialogue” between the various Supreme Administrative Courts and this topic represents, as you now know, the leitmotif of our Presidency, which will accompany us during our upcoming meetings.

The General Report on “Techniques for the protection of private subjects in contrast with public authorities: actions and remedies - liability and compliance” now allows us to take a further significant step towards the “ever-closer union among the peoples of Europe”, a very forward-looking objective of the Treaties of Rome.

Your replies to the questionnaire and the following General Report show that through an analysis of the actions that can be brought before an administrative judge, through the investigation of the techniques guaranteeing protection, through the study of the existence of special rites, including those aimed at the protection of “sensitive” interests of “economic and social” impact, mutual knowledge of our respective systems is further intensified.

With this in mind, on 2nd May, we hosted in Palazzo Spada the first meeting of the working group focused on the compilation of a Glossary, thanks to which a substantial number of terms shared by the Supreme Administrative Courts should no longer cause confusion in the drafting and answering of our questionnaires. During the next general Assembly on 24th May, we will report on the group's objectives for this ambitious project, which may also be of benefit to other EU institutions and represents another step towards the better understanding of the functioning of our Supreme Administrative Courts.

It only remains for me to assure you that the Italian Council of State and the ACA-Europe Secretariat look forward to seeing you in Rome in a few days.

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

Seminars

As we are benefitting from the chance to meet in-person again, the upcoming seminar, the Board and the General Assembly will soon take place in Rome. The seminar, organized by the Council of State of Italy in cooperation with ACA-Europe in Rome, on 23 May 2022, will address the ‘Techniques for the protection of private subjects in contrast with public authorities: actions and remedies – liability and compliance’.

The General report and 31 national reports are available online.

A ‘save the date’ has been sent to the members for the seminar organized by the Spanish Supreme Court in cooperation with ACA-Europe on 21 November 2022 in Madrid, which will address the application of general principles and clauses in the case law of contentious-administrative courts. The seminar will be hosted as an in-person event.

The questionnaire for the preparation of this seminar was distributed among the members on 6 May 2022. Deadline for participation is 10 June 2022.

The formal letter of invitation, agenda and registration form for the seminar will be sent in due time.

The summary for the Paris seminar is now online, in addition to the general report and the national reports, which were previously published: summary | general report | national reports

Jurifast

These decisions have been selected for you:

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4175

Estonia

Judgment of 30 March 2021

This judgment is a decision referring a question to the Court of Justice of the European Union for a preliminary ruling.

The dispute concerns the lawfulness of the detention of a third-country national staying illegally in the Republic of Estonia. This person was convicted of physical violence against his partner and another victim. A suspended prison sentence was imposed on him. He was released at the courthouse. However, on the same day, he was issued with an immediately enforceable order to leave the country and was detained on the basis of the national provision transposing Article 15 of Directive 2008/115/EC.

The issue in this case is whether Article 15(1) of Directive 2008/115/EC can justify the detention ordered.

The Court found that Article 15(1) does not provide a clear answer to this question. Consequently, the Supreme Court found it necessary to refer a question to the Court of Justice for a preliminary ruling..

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4072

Italy

Order of 7 January 2022

This case concerns the unfair commercial practices adopted by the car manufacturer Volkswagen in relation to the gas emissions of their diesel engine.

The question is whether a national regulation is compatible with the ne bis in idem principle, provided for in art. 50 of the Charter of Fundamental Rights of the European Union, when that regulation allows the administrative judge to establish the legitimacy of a sanction imposed, for the aforementioned practices, by the Market Regulation Authority, when the conduct of the economic operator, in this case Volkswagen, was the subject in another country of the Union of a criminal conviction, which had become irrevocable before the Italian administrative judge was called upon to render his final decision.

The Council of State refers a question to the Court of Justice for a preliminary ruling on this compatibility.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4175

Germany

Judgment of 15 September 2021

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

The dispute concerns the recognition of a driving licence issued in one Member State in another Member State.

The background is as follows:

The applicant wishes to have it established that he is entitled to drive motor vehicles in Germany with his Spanish driving licence. He has obtained a driving licence in both countries.

A Spanish national, who holds both a Spanish and a German licence, had his German driving licence permanently withdrawn for drunk driving. He was also deprived of the right to use his Spanish driving licence in Germany. However, the Spanish authorities, to whom the withdrawn Spanish driving licence had been forwarded, returned it to the applicant without further action. However, the authority rejected the applicant's request to have the Spanish driving licence recognised in Germany. According to the authority, the applicant had to produce a positive medical-psychological report beforehand, showing that he was once again fit to drive. The renewal of a driving licence in Spain is subject to a health examination, but not to a verification of the minimum conditions imposed by Article 7(1) of Directive 2006/126/EC for the issue of a driving licence, and consequently not to a full verification of fitness to drive either.

Preliminary ruling

In the preliminary ruling in this case (judgment of 29 April 2021, C-47/20), the Court of Justice of the European Union stated in substance that since, according to the above-mentioned Directive, Member States are not obliged, when renewing a licence, to carry out a check on physical and mental fitness to drive, the Member State in whose territory the holder of a licence that has only been renewed wishes to drive, after having been deprived, as a result of a road traffic offence committed in that territory, of the right to drive there, may refuse, under the exception provided for in the second subparagraph of Article 11(4) of Directive 2006/126, to recognise the validity of that licence where, after the expiry of any period of prohibition on applying for a new licence, the conditions laid down in national law for regaining the right to drive in that territory are not satisfied.

Follow-up decision

Following this judgment, the Federal Administrative Court decided that section 3(6) of the German Road Traffic Act should be interpreted in accordance with EU law. The Court thus decided in substance that if the holder of a driving licence renewed in the Member State of his normal residence provides proof that his fitness to drive was checked in that country on the occasion of the renewal of his driving licence and that this check corresponds to the one that must be passed for the medical-psychological expertise to be positive according to German law, the authority may not, in its decision on the right of the person concerned to use his driving licence again in Germany, conclude that he is unfit to drive under the first sentence of Section 11(8) of the FeV on account of the failure to submit the medical-psychological report it requires. The production of such evidence is deemed to be equivalent to the submission of a positive medical-psychological report.

http://www.aca-europe.eu/index.php/en/jurifast-en?ID=3684

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 225 members from 34 institutions.

Since the last e-news, 9 new collective questions have been asked and 12 countries have actively participated with 50 answers: Austria, Belgium, the Czech Republic, Estonia, France, Germany, Latvia, Lithuania, Luxembourg, the Netherlands, Poland and the Slovak Republic.

The following topics were discussed:

  • Protocol 16 ECHR (9 answers)
  • Extension of the preclusion period according to Art. 221(4) of the Customs Code (5 answers)
  • Individual complaints procedure of the ‘Optional Protocols to UN Treaties’ (3 answers)
  • VAT tax fraud (6 answers)
  • Dublin III Regulation; transfer term of eighteen months (7 answers)
  • OECD Model Bilateral Convention - "Paid to" (3 answers)
  • Access to file for a natural person (5 answers)
  • Minor child in a case of family reunification (8 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

For the 2021 exchange programme, a list of 18 trainees was approved by the Board of the Association at its meeting of 31 May 2021. Due to the exceptional circumstances linked to the COVID-19 pandemic, 6 exchanges were postponed and will be continued in 2022. For the remaining 12 places, the ordinary procedure was launched, the outcome of which will be submitted to the Board for approval on 22 May 2022 in Rome and then communicated - as approved - to the General Assembly on 24 May 2022.

Glossary of legal terms

On 2 May 2022, the presidency working group tasked with producing a glossary of legal terms met for a first time at the Italian Council of State in Rome. The outcome of this meeting will be reported to the General Assembly on 24 May 2022. The glossary will be presented during the General Assembly in Napels in May 2023.

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.

Statement of the board on Russia's military invasion of Ukraine

On 1 March 2022, the Board of ACA-Europe issued a statement on Russia’s military invasion of Ukraine, condemning the use of military force and the invasion in Ukraine, expressing ist concern at violations of international law and of human rights and fundamental freedoms, and expressing its solidarity with the people of Ukraine.

Members' News

France

Roland TABUTEAU

Mr. Didier-Roland TABUTEAU has been appointed Vice-President of the French Council of State. A graduate of the Ecole Polytechnique, Didier-Roland Tabuteau is an alumnus of the Ecole Nationale d’Administration (ENA, “Promotion Louise Michel”, 1984). He holds a doctorate in public law and an accreditation to supervise research. He teaches at the IEP in Paris and at the University.

Didier-Roland Tabuteau joined the Council of State in 1984 as an auditor in the Litigation Section and then in the Interior Section. He was a public rapporteur in the Litigation Section (1991-1992).

He continued his career outside the Council of State in the field of health and social affairs:

  • He held positions in several ministerial cabinets: deputy director of the cabinet of the Minister for Solidarity, Health and Civil Protection (1988 - 1991) then of the Minister for Employment and Solidarity (1997 - 2000), director of the cabinet of the Minister for Health and Social Action (1992-1993) then of the Minister for Health (2001-2002)
  • He was also Director General of the French medical drug agency (1993-1997) and Director General of the Fondation” Caisses d'épargne pour la solidarité” (2003-2011).

Didier-Roland Tabuteau returned to the Council of State in 2011 and has chaired the social section since 2018. He succeeds Bruno Lasserre.

https://www.conseil-etat.fr/

Poland

Jacek CHLEBNY

Mr. Jacek CHLEBNY was appointed President of the Supreme Administrative Court of Poland.

He graduated from the Faculty of Law and Administration at the University of Łódź in 1982. He has extensive and long-time experience in the judiciary - both in common courts and administrative courts. In 1986, he was appointed to the post of judge at the District Court of Łódź. Since 1989 he was the president of the 2nd Civil Division, and then since 1990 Vice-President of the said Court.

In 1991 he was appointed to the post of judge at the Voivodship Court in Łódź. In 1994, he was appointed a judge of the Supreme Administrative Court (SAC), and then since 1995 President of the Łodź branch of the SAC. He held the said post and – after the implementation of constitutional administrative judiciary reform 2004 – the post of the President of the Voivodship Administrative Court in Łódź till February 2005. Then he was transferred to adjudicate at the Supreme Administrative Court in Warsaw. From 13th February 2006 to 9th April 2015 he held the position of the President of the Voivodship Administrative Court in Warsaw.

On 10th April 2015 he was appointed to the post of the Vice-President of the Supreme Administrative Court and was reappointed after a 5-year term in 2020. He managed the General Administrative Chamber. By the order of the President of the Republic of Poland of 3rd February 2022 he was appointed to the post of the President of the Supreme Administrative Court.

He combines his work as a judge with scientific research and teaching activities. In 1994 he obtained LL.D., and in 2013 the title of habilitated doctor in law. He is employed as an associate professor at the Department of Administrative Procedure and Judicial Control over Administration of the University of Łódź. His scientific interests focus on administrative and administrative court proceedings and legal issues related to the legal protection of foreigners rights.

He is one of the co-founders of the International Association of Refugee Law Judges (IARLJ), a former long-serving member of the Association Council and a member of the Board of Association between 2009 and 2014. Since 2014 he has been a member of the Board of the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (ACA Europe).

http://www.nsa.gov.pl

Czech Republic

Dr. Karel ŠIMKA

In February 2022, Dr. Karel ŠIMKA has been appointed as President of the Supreme Administrative Court of the Czech Republic.

Born in 1973, Mr. Šimka obtained a bachelor’s and master’s degree in political sciences at the Faculty of Social Studies of Charles University in Prague and a bachelor’s and master’s degree in law at the Law Faculty of the University of West Bohemia in Pilsen. Subsequently, he obtained a “Ph.D. – Doctor of Political Science” degree in 1998 at the Faculty of Social Sciences of Charles University in Prague, a “JUDr - Iuris Utriusque Doctor” degree in 1984 at the Faculty of Law of Charles University in Prague and a “Ph.Dr. – Doctor of Philosophy”-degree at the Faculty of Social Sciences at Charles University in Prague in 2001.

Prior to joining the Supreme Administrative Court of the Czech Republic in 2005, he held a position as an assistant at the Faculty of Law of the University of West Bohemia, while in parallel serving as a trainee judge of the Regional Court in Prague. In 2001, he was subsequently appointed Judge of the District Court of Prague-West in civil matters (2001) and Judge of the Supreme Administrative Court (2005).

Amongst his other duties, he is Presiding Judge of the financial-administrative Collegiate Division, substitute judge for a member of the Special Chamber for Matters of Jurisdictional Conflicts, and is a member of the Grand Chamber of the Supreme Administrative Court since 2008. Since 2014, he is a member of the Chamber for the Matters of Competence Complaints of the Supreme Administrative Court. From 2016 to 2022, he was appointed presiding judge of the Disciplinary Chamber in Judges’ Matters. Before being appointed presiding judge of the division, he was also a member of the financial-administrative Collegiate Division.

Mr. Šimka is fluent in German, and has good knowledge of English and Russian.

Karel Šimka has published in several professional journals, mostly related to law and to a lesser extent related to political science. As an assistant professor, he lectures at the Department of Administrative Law, Faculty of Law, University of West Bohemia. He is a highly sought-after speaker for conferences and seminars.

http://www.nssoud.cz

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

Dissemination towards the general public

The development of a dissemination strategy towards the general public is an obligation imposed by the European Commission within the framework of our grant agreement.

The strengthening of this strategy is one of the focal points of the Italian Presidency.

To this end, in order to obtain a state of play, a short questionnaire was sent to the members on 25 April 2022.

Based on the results, a plan of action will be drafted by the Presidency and the General Secretariat.

In this issue

Editorial

Seminars

Jurifast

Forum

Judge Exchange

Glossary of legal terms

Cross-sectional analysis

e-Library

Statement

Members' News

ACA News

Agenda

22 May 2022

 

Board meeting – Rome, Italy

23 May 2022

 

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

24 May 2022

 

General Assembly – Rome, Italy

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

In the Framework of the annual cross-sectional analysis, the draft report of the 2021 analysis, ‘The Supreme Administrative Courts in times of COVID-19 – 2021 edition’, was sent to the members for feedback on 4 May 2022. The final version of the report will be published on the website towards the end of June. A link to the report will be sent to the members by ‘Info-flash’.

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

2022

In the framework of the 2022 cross-sectional analysis, a working group will be launched to contribute to the 2022 EU Justice Scoreboard, on a subject to be decided by the Board at its meeting on 22 May 2022.

The Supreme Administrative Court of Poland will host the first meeting of the working group in Warsaw, Poland on Monday 12 September 2022, as an in-person event.

 

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