e-News 2024/1

Editorial

Dear Colleagues,

The second event during the Finnish presidency was organized on 18-19 February 2024 by the High Administrative Court of Croatia. The seminar in Zagreb focused on counteracting conflicting rulings by parallel supreme domestic jurisdictions and constitutional courts, on the one hand, and national and European courts (CJEU and ECtHR), on the other.

The seminar had an academic touch – not least thanks to the excellent general report compiled by Professor Dario Đerđa and his analytical speech highlighting similarities and differences of our European systems. It was interesting to learn how the problem with conflicting judgments is tackled in different states, and to hear about the important role of the Jurisconsult office of the European Court of Human Rights in guaranteeing the uniformity of the court´s case-law. My personal impression is that most challenges can be avoided with good cooperation and exchange of information on pending cases and delivered rulings.

In addition to high-quality presentations followed by good discussions the High Administrative Court of Croatia treated us to an exquisite welcome dinner in an atmospheric restaurant. We also had the privilege of enjoying a fantastic performance by two opera singers. The perfect conclusion to this much-appreciated seminar was a guided walk in the beautiful old town. On behalf of all the participants I wish to express my gratitude to President Inga Vezmar Barlek and her superb team for fine arrangements and great hospitality.

The next event will take place from 25 to 28 May in Finnish Lapland. In Inari we will gather for a seminar focusing on fundamental rights (under the title Mapping the Multilevel Protection of Fundamental Rights in European Administrative Courts). We will follow the tradition according to which the Board convenes on Sunday. As usual, the seminar will be followed by the General Assembly’s annual meeting on Tuesday. Although the Finnish presidency began about a year ago and this is the third time we meet, this is the first event to be hosted by the Supreme Administrative Court of Finland. I cannot say enough in praise of the precious cooperation with our Swedish and Croatian colleagues who hosted the first two events of the presidency.

We are excited to welcome you to Lapland, and very happy for the large number of registrations, as well as for your answers to the questionnaire. A special feature of the Inari seminar will be a joint symposium together with representatives of the Sámi parliament. The symposium will focus on Climate, Environment, and Land Use. The Sámi are the only indigenous people in the European Union, and their culture – including the three Sámi languages, reindeer herding, fishing, hunting, is protected by the Finnish Constitution.

As I mentioned in the December editorial, 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. Following the example set by our Estonian colleagues, the Supreme Court and the Supreme Administrative Court of Finland have decided to reach out to Ukraine and its judiciary. I am very pleased and honored that the President of the Supreme Court of Ukraine has agreed to send two judges of the Administrative Cassation Court to participate in the Inari seminar. They will be guests of my court. I hope that their attendance in this forum will help to establish contact with as many of you as possible.

I look forward to seeing you soon. Until then, I wish you a beautiful springtime.

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

Seminars

Reflecting on our recent seminars, we are delighted to look back on another enlightening session hosted within our association. Co-organized by ACA-Europe and the High Administrative Court of the Republic of Croatia, the seminar held on 19 February 2024 in Zagreb provided a platform for exploring mechanisms aimed at mitigating inconsistent judgments between national courts and supranational entities such as the Court of Justice of the European Union and the European Court of Human Rights.

Set against the backdrop of the Finnish-Swedish ACA presidency's primary objective to bolster vertical communication between national high court jurisdictions and supranational European courts, the significance of the Zagreb seminar cannot be overstated. This seminar holds weight given the profound impact these supranational court decisions have on judicial practices and legislation within individual states.

At the core of the seminar’s agenda was the imperative to deepen our understanding of existing mechanisms designed to address inconsistent rulings in the context of administrative disputes. Participants engaged in insightful discussions aimed at refining these mechanisms and fostering greater coherence in legal outcomes.

The Association’s website now hosts the comprehensive General Report titled “Mechanisms of Counteracting Conflicting Rulings from Different Domestic Courts, the European Court of Justice, and the European Court of Human Rights”. Compiled from completed questionnaires containing 37 inquiries, this report is a culmination of insights gathered from across 28 European countries, facilitating fruitful discussions in Zagreb.

Anticipating on upcoming seminars, ACA-members will meet again in Inari in Finnish Lapland from 25 – 28 May 2024.

ACA-members will gather on May 27, 2024, for a seminar titled “Mapping the Multilevel Protection of Fundamental Rights in European Administrative Courts” which promises to be an insightful exploration into the crucial topic of vertical dialogue from the perspective of the framework of European fundamental rights protection juxtaposed with the national constitutional frameworks of fundamental rights. This seminar is organized by the Supreme Administrative Court of Finland in collaboration with ACA-Europe. The deadline for registration for the seminar was Thursday, 22 February 2024.

In preparation of the forthcoming seminar, the English version of the General Report has been published on the Association’s website. The French version will follow soon. The report, derived from the questionnaire distributed among ACA member institutions on 15 December 2023, provides valuable insights and findings for participants to engage with ahead of the seminar.

Additionally, on Saturday 25 May 2024 and Sunday 26 May 2024, preceding the Inari seminar, the Supreme Administrative Court of Finland will offer an introduction to the conditions north of the Arctic Circle and Sámi culture. Concurrently, a symposium on “Climate, Environment and Land Use” is scheduled for Sunday, 26 May 2024, as part of the realization of the ACA-Europe’s Dissemination Strategy. After the seminar on Monday, 27 May 2024, a General Assembly is scheduled for Tuesday, 28 May 2024.

Looking ahead, we are excited to announce a seminar organized by the Council of State of France in collaboration with ACA-Europe in Versailles, on 29 November 2024. This seminar will explore the theme of “Ethics and recruitment of members of the Supreme Administrative Courts and Councils of State”.

The questionnaire in preparation of this seminar was sent to ACA-members on 7 March 2024. The deadline for participation is Monday, 22 April 2024. We extend our gratitude for all participating member institutions, offering valuable insights in their legal systems. Member institutions can expect the formal letter of invitation, agenda, and registration form in due course.

Jurifast

The following decisions have been selected for you:

	The Netherlands Judgment of 17 January 2024 The Administrative Jurisdiction Division of the Council of State of the Netherlands recently referred two questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the interpretation of Directive 2011/95/EU (the Qualification Directive). The Division wanted to know how the Qualification Directive protects the mere holding of a political belief and how the holding of such a belief is to be examined and assessed. In this case, foreign nationals conducted political activities in the Netherlands. They declared that they had developed a political belief during their stay in the Netherlands. Because of this belief, they feared that they would be in danger if they had to return to their country of origin and therefore applied for asylum. The applicants argued that it is sufficient to hold and express a mere opinion on political matters to have a political conviction. The CJEU responded to the questions that for an application for asylum based on political opinions to be valid, it is sufficient for the applicant to state that he holds or expresses such opinions, without this presuming the assessment of the legitimacy of his fear of persecution. The authorities of the Member States must take into account the degree of conviction with which these political opinions are expressed, as well as the applicant's activities to promote them, in assessing the legitimacy of his fear of persecution. However, it is not necessary for these opinions to be deeply rooted in the applicant for him or her to fear persecution if returned to his or her country of origin. Following the decision of the Court of Justice of the European Union (CJEU), the Secretary of State acknowledged an error in assessing the political opinions of foreign nationals. He has admitted that his current policy is at odds with the Directive and must be amended accordingly. It is therefore his responsibility to adapt his working methods in line with the CJEU ruling. For the foreign nationals concerned, this decision means that the Secretary of State will have to reassess their political opinions and fear of persecution according to a new working method. He will have to determine whether these fears justify the granting of asylum, which will lead to a re-examination of their asylum claims. These rulings also have an important bearing on other foreign nationals who fear persecution because of their desire to express their political opinions, even if they have not previously been expressed in their country of origin. This judgment is of significant importance as it requires the Secretary of State to review his policy on assessing asylum seekers' fears on the grounds of political opinion. It also strengthens the rights of applicants for international protection by clarifying the criteria for assessing political opinion and guaranteeing greater protection against persecution on political grounds. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4189
	Portugal Judgment of 13 December 2023 The Supreme Administrative Court referred a question to the Court of Justice for a preliminary ruling on the interpretation of Article 56 of the Treaty on the Functioning of the European Union (TFEU) and Article 2(4) of the Agreement between the European Community and the Swiss Confederation on measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments. This request was made in the context of a dispute between a Portuguese citizen and the Portuguese tax and customs authorities concerning the taxation of interest income from bonds and debt securities paid to this citizen by a Swiss banking institution. The question was whether Article 56 TFEU and Article 2(4) of the Agreement between the European Community and the Swiss Confederation preclude national legislation of a Member State which taxes interest income received by its taxpayers at a progressive rate of up to 40% where it derives from bonds issued by an entity of another Member State or of a third State such as Switzerland, while interest income deriving from domestic bonds is subject to a lower flat rate of 20%. The Court replied that the assessment made by the tax authority, resulting from the actual interpretation and application of the national and European rules applicable in this case, was contrary to Community law and to the Agreement between the European Community and the Swiss Confederation, which provides for measures equivalent to those laid down in Council Directive 2003/48/EC on taxation of savings income in the form of interest payments. This case highlights the principle of non-discrimination between European taxpayers with regard to the taxation of interest income from bonds issued by entities in different Member States or third countries such as Switzerland. The Court of Justice of the EU thus underlines the importance of equal treatment and compliance with international commitments in the tax field. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4363
	Estonia Judgment of 11 October 2023 At the end of last year, the Supreme Court handed down an important ruling on environmental protection and climate change. In this case, an environmental organization challenged a permit to build a shale oil production plant. The organization’s main argument was that the construction of the oil plant would not achieve the objective of climate neutrality. The Supreme Court ruled that the constitutional obligation to protect the environment justifies limiting greenhouse gas emissions in order to combat climate change. It emphasized that the climate impact of projects must be assessed as soon as building permits are granted. If these activities are likely to compromise the objectives of reducing emissions, they must be strongly justified by substantial interests. The court also ruled that if the emissions are not tolerable, the permit must be refused. The Court also emphasised that the legislature must base its decisions on the essential issues of the obligation to limit greenhouse gas emissions on the best available scientific information and Estonia's international obligations. The Court insisted that Estonia must contribute to the Paris Agreement by establishing a binding plan, by stage and by sector, to achieve carbon neutrality. This is a strong and courageous decision, as it reinforces the obligations of public authorities to take climate issues into account in their decisions and encourages proactive action to reduce greenhouse gas emissions and achieve the objectives of the Paris Agreement. http://www.aca-europe.eu/index.php/en/jurifast-en?ID=4335

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 233 members from 34 institutions.

Since the last e-news, 4 new collective questions have been asked and 10 countries have actively participated with 20 answers: Austria, Belgium, Czechia, Estonia, France, Latvia, Lithuania, the Netherlands, Poland and Slovakia.

The following topics were discussed:

• Processing of biometric data during online examinations (6 answers)
• The criterion of sufficient income (3 answers)
• Reopening normative administrative cases (7 answers)
• Designation of plant-based alternatives to dairy products (4 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 8/23 | Flash 1/24 | Flash 2/24

Follow-up of preliminary ruling: Flash 1/24|

Monthly case-law digest CJEU: December 2024 | January 2024 | February 2024

Judge Exchange

The 2023 judges exchange program has been successfully concluded: all 18 trainees selected by the Board of ACA-Europe have completed their internship and submitted an internship report to the Secretariat-General.

The 2024 judges’ exchange program is currently being implemented.

Furthermore, the organization of the judges’ exchange program for the year 2025 is ongoing, and the Secretariat-General will submit the result to the next Board meeting for approval.

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:

• A. Pahladsingh, A judgment of the Court of Justice can constitute a new element justifying a fresh examination of the substance of the subsequent asylum application. Case C-216/22, a strengthening of the legal position of the asylum seeker, EU Law Live, 22 February 2024.
• Bundesverwaltungsgericht Germany, Jahresbericht 2023, 14 March 2024.

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

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 2023, the focus of the cross-sectional analysis is on a critical topic, namely “Can the Supreme Administrative Courts save the climate (environment)?”

The aim of the 2023 cross-sectional analysis is to thoroughly examine the efficiency and effectiveness of Supreme Administrative Courts in their judicial review of environmental and climate cases. The topic aligns closely with the symposium on “Climate, Environment and Land Use”, taking place on Sunday, 26 May 2024, in Inari, Finnish Lapland, as part of the realization of the ACA-Europe’s Dissemination Strategy.

The questionnaire included inquiries regarding the average time required, interim measures, enforcement of judicial decisions, and, where applicable, violations of European Union Law.

The questionnaire was distributed among ACA members on December 20, 2023, with a participation deadline set for January 19, 2024. We are pleased to report that no fewer than 28 members responded to the questionnaire. The collected data will significantly enhance our comprehension of the intricate challenges and dynamics inherent in the judicial review process concerning environmental and climate-related cases by Supreme Administrative Courts.

Having concluded the initial phases, which encompassed the development of the questionnaire and the gathering of responses, the working group tasked with the 2023 cross-sectional analysis is now progressing to the final phase. This involves meticulously analysing the compiled data and composing the definitive report.

In the run-up to the symposium on “Climate, Environment and Land Use”, taking place on Sunday, 26 May 2024, in Inari, Finnish Lapland, the national reports have already been published on the ACA-Europe website. The publication of the report is projected for the end of June 2024.