Nº2 JANUARY 25
2020
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Test Bed for Judicial Independence: the Polish Experience Piotr Bogdanowicz and Maciej Taborowski PAGE
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In our second Weekend Edition, Piotr Bogdanowicz and Maciej Taborowski take us through the urry of legal actions stemming from questions of judicial independence in Poland, looking at the EU, CJEU and Polish moves in a time critical for the rule of law. Continuing on the theme of rule of law, its relationship with mutual trust and the Charter is explored by Xavier Groussot and Giuseppe Martinico, who herald a new judicial activism, looking at an exceptional two years of cases from the CJEU
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Mutual Trust, the Rule of Law and the Charter: A New Age of Judicial Activism By Xavier Groussot and Giuseppe Martinico PAGE
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EU LAW LIVE 2020 © ALL RIGHTS RESERVED
Nº2 · JANUARY 25, 2020
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Test Bed for Judicial Independence: the Polish Experience Piotr Bogdanowicz and Maciej Taborowski
No other Member State of the EU can match Poland in offering the CJEU the opportunity to develop the standard of judicial independence as dynamically and as extensively, in the context of Article 19(1) of TEU, as well as Article 47 of the Charter of Fundamental Rights of the European Union. Against this context, several rulings of the CJEU are particularly interesting, although the most interesting ones still lie ahead of us. What is then the real value of Poland’s contribution to the standard of judicial independence? 1. Context: ‘Reform’ of the judiciary Nearly 30 years after the fall of communism, Poland faces the need to ght for a value that sets the foundations of any state governed by ru-
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le of law: judicial independence. The so-called ‘reforms’ of the judiciary left their mark on the Constitutional Tribunal, the National Council of Judiciary, common courts, the Supreme Court (SC) and the National Administrative Court. Thanks to the changes made, the ruling majority strengthened its impact on courts and judges. The reforms, in the words of the ruling majority’s leader, aimed at creating a ‘Budapest in Warsaw’, resulted in exacerbating relations between Poland and the European Union which had to ‘revive’ its own legal mechanisms and start building a system of defence. 2. The EU’s response to Poland Measures taken by EU institutions with respect to Po-
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land have often been unprecedented. For the rst time, the Commission carried out a procedure based on the 2014 Communication: ‘New EU Framework to strengthen the Rule of Law’, which culminated in four recommendations that brought no intended results. Poland was the rst country against which the procedure under Article 7(1) TEU has been initiated. Poland certainly ‘contributed’ to the emergence of the proposal to link European funds to the rule of law. It was also the rst time that the Commission decided to bring action before the Court in the context of independence of a national court of last instance under the meaning of Article 267 TFEU (namely Poland’s Supreme Court) (C-619/18), as well as in the context of the independence of common courts (C-
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constituted a serious threat to the independence of both courts and judges as well as for the division of powers in Poland.
192/18), and disciplinary measures regarding Polish judges ( C-791/19 ). Polish courts themselves also made a dozen unprecedented requests to the CJEU for preliminary rulings.
Signicance In the ASJP judgment, the Court found that the scope of applicability of EU law includes protection of the institutional status of national courts which, together with the CJEU, full a duty entrusted to them jointly of ensuring that, in the interpretation and application of the Treaties, the law is observed. The Court decided that Article 19(1)(2) TEU, giving specic expression to the value of the rule of law stated in Article 2 TEU, shall apply to a court which potentially may only interpret and apply EU law without reference to another specic EU element (such as implementation of assistance programmes funded by the EU). The Court therefore differentiated between the scope of application of Article 47 of the Charter (in light of Article 51(1) of the Charter) and Arti-
3. Opening the door: the ‘Portuguese Judges’ judgment The ruling which paved the way for the Polish experience concerned Portuguese judges (C-64/16, ASJP), and unveiled the new approach to the legal effects of Article 19(1)(2) TEU as well as the Member States’ obligation to ensure effective judicial protection ‘within the elds covered by EU law’. Polish context It would be difcult not to conclude that the ruling rendered by CJEU in the ASJP case was motivated by the situation in Poland. At the time when the ruling was rendered, the Commission had already, for two years, been following the procedure under the aforementioned Communication, had issued four recommendations regarding the rule of law and had sent a proposal under Article 7(1) TEU. Recommendations of the Commission conrmed a signicant problem in Poland with regard to observance of judgments of the Constitutional Tribunal as well as adoption of laws that infringed the entire structure of the country’s judiciary. The common point of those changes was that the executive or legislative power gained a systemic possibility to signicantly interfere with the composition, powers, administration and operation of judicial authorities and courts. The Commission believed that the legislative changes and the results thereof
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cle 19(1)(2) TEU. The case of the Portuguese judges seeking equitable remuneration has thus become, solely for that reason, a case with an EU element. This opened entirely new possibilities for the Commission’s and the Court’s supervision over a national judiciary, which were used in the Polish case. 4. The Polish laboratory: relevant rulings Ruling concerning common courts The rst complaint against Poland, which was lodged based on Article 258 TFEU, concerned the lowering of the retirement age of judges of common courts (C192/18). Interestingly, the complaint, at least, partly followed the ‘Hungarian scenario’ (C-282/12) because the Commission relied on a Directive as engaging the scope of application of EU law, instead of referring merely to Article 19(1) TEU, as it did in the ASJP case. In the Hungarian case, it was Directive 2000/78 which prohibited discrimination based on age, whereas in the Polish case it was Directive 2006/54 and Article 157 TFEU which prohibited dis-
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crimination based on sex. The Polish legislation in dispute applied a different retirement age for women (60 years of age) and men (65 years) serving as judges in a situation where formerly, the same retirement age applied to both sexes (67 years). Unsurprisingly, the Court held that Poland was in breach of EU law. However,
Unsurprisingly, the Court held that Poland infringed EU law there was also the second part of that complaint, regarding the discretionary consent granted by the Minister of Justice to judges who reached the retirement age to continue in active service (until the age of 70). The consent was given based on unclear criteria (such as the rational use of the staff of courts), without specifying the period within which the respective decision was to be made, with no justication thereof or any judicial review of the Minister’s decision.
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In the CJEU’s view, this opened up the possibility to inuence the independence of judges by allowing external pressure to be imposed, as it could ‘give rise to reasonable doubts, inter alia in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to any interests that may be the subject of argument before them’ (paragraph 124). The Court held that the principle of irremovability of judges was also infringed as the measure vested with the Minister of Justice was coupled with the lowering of retirement age, and the period of active professional service up to the minister’s discretionary decision was relatively long. In addition, a judge remained in his or her post until the Minister of Justice made the respective decision for which no time limit was set. Those arguments led to the determination that Article 19(1)(2) TEU had been breached. Ruling concerning the Supreme Court The second case brought under Article 258 TFEU, this ti-
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mediately suspending application of the challenged national regulations, including those that led to repealing or replacement of the regulations formerly xing the retirement age of Supreme Court judges, in view of which those former regulations shall apply until delivery of the nal judgment in the case. Consequently, the CJEU ‘brought back to life’ the former law that had been repealed by the national legislature.
me based solely on Article 19(1)(2) TEU and the ASJP judgment, regarded the lowering of retirement age of judges of the Polish Supreme Court. Polish legislation lowered the retirement age of judges of the Supreme Court from 70 to 65 years of age. Consent to continued service (two times, for three-year periods) could be given by the President, with full discretion, subject to seeking a non-binding opinion of the National Council of the Judiciary (NCJ), which would be given based on very general guidelines (such as important public interest). The respective law, introduced without any interim period, would remove nearly 40% of SC judges from their positions, including the Supreme Court’s First President. Several issues are noteworthy here.
Thirdly, the Court held that doubts may be raised as to whether the reform of the retirement age was made in pursuance of standardising the retirement age of judges and all other employees, and not ‘with the aim of side-lining a certain group of Supreme Court judges’. By the same, it rejected Poland’s explanation that the changes made had an important, justied purpose, and that they were proportionate.
Firstly, at the pre-litigation stage of the procedure, the Commission gave shorter time limits (one month) than usual (two months) for Poland to reply to the letter of formal notice and to subsequently issue a reasoned opinion.
Finally, the Court ruled that a body such as the NCJ must satisfy certain requirements if its opinion is to contribute to reinforcing objectivity of the procedure for granting the extension by the President. In particular, the Court voiced the opinion that the body itself must be independent of the legislative and executive authorities and of the authority to which it is required to deliver its opinion, while the opinion itself must be delivered based on criteria which are both objective and relevant, and furthermore, it must be properly reasoned. Hence, for the rst time in history the Court specied the terms for the functioning of a body not being a court but established for the purpose of safeguarding judicial independence.
Secondly, the Commission applied to the CJEU for interim measures, consisting in the suspension of application of the regulations lowering the retirement age while also reinstating the consequently dismissed judges. The application was granted, rst temporarily by the Vice President of the Court, and then by the Court’s Grand Chamber. It is, however, worth noting that the ruling of the CJEU amounted to an interference in the autonomy of the national legislature. The Court pointed out that ordering interim measures has the effect of directly and im-
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Ruling concerning the National Council of the Judiciary
the President with candidates for judges, it may contribute to greater objectivity of the procedure of appointment only if the body itself is sufciently independent of the legislative and executive authorities and of the authority with which it is required to deliver proposal for appointment of a judge (paragraph 137). This matters in assessing whether the judges appointed in this manner meet the requirement of independence. All legal and factual circumstances are to be taken into account in this context, including those in which members of the NCJ were appointed (for example as a result of discontinuing the term of ofce of a former NCJ as a result of a procedure which in-
The status of the NCJ and of the judges appointed by it to the Disciplinary Chamber of SC (which rules in disciplinary and staff cases of judges of national courts) is the subject matter of the judgment delivered by the Court on 19 November 2019 in joined cases 585/18, 624/18 and 625/18. In this judgment, the CJEU, while referring to existing case-law of the European Court of Human Rights in Strasbourg, set out in more detail the standard of appointing judges to national courts in the context of judi-
creased political inuence on the appointment of NCJ members) and the manner in which this body fulls its role. Hence, it examined whether doubts as to independence of a court may be raised in light of such circumstances. In this context, one must also consider whether the rulings of a body such as the NCJ are subject to effective judicial review (para. 145). Further, the Court pointed out that elements which characterise the court being subject to assessment as to independence must be examined and collectively evaluated. The key issue is whether such assessment gives rise to doubts on the independence of a national court.
cial independence. The Court’s judgment rendered in the SC case made it clear that judicial independence must also be guaranteed in the context of the procedure of appointing judges (C-619/18, paragraph 74). The Court notes that these regulations must exclude any reasonable doubt as to a court’s independence from any external factors as well as its neutrality with respect to the overlapping interests on which it rules. In this case, the Court described this standard in more detail by deciding, in the Polish context, that if judges are appointed by the President but a body such as the NCJ participates in the procedure by providing
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sions among the Member States (cf. judgment in C-404/15 and C-659/15 PPU Aranyosi and Căldăraru).
Following the Court’s judgment, the Chamber of Labour and Social Security of the SC issued three rulings in which it has been stated that the Disciplinary Chamber of the SC is not a court within the meaning of EU law due to its lack of independence according to the criteria established by the CJEU.
In the LM case the Court provided a two-step examination with respect to refraining from execution of the EAW in question.
As courts across Poland started to apply those criteria, the ruling majority started a counter attack: disciplinary proceedings against judges (even with criminal charges) are being initiated and a special ‘muzzle’ law is being prepared in order to silence those judges who try to apply the CJEU’s judgment.
For the first time in history the Court specified the terms for the functioning of a body not being a court but established for the purpose of safeguarding judicial independence
Judgment in the LM case Finally, with the background of the Treaties as the constitutional charter of EU, the Court set a ‘safety valve’ offering national courts a mechanism of defence in a situation where a systemic problems with judicial independence occur in another Member State. An example of such a situation is provided by C216/18, LM (or Minister for Equality and Justice) regarding the European Arrest Warrant (EAW).
As a rst step, a court should assess, based on objective, reliable, specic and properly updated information on the given Member State's (here Polish) legal regime, the existence of a real risk of the right to a fair trial being breached due to systemic or generalised deciencies regarding the independence of Polish courts. It is worth noting that, as part of the rst-step assessment, the Court decided that the information included in the reasoned proposal submitted by the European Commission to the Council pursuant to Article 7(1) TEU was of particular signicance. In doing so, the Court extended the sources of information to be considered by a court which decides on possibly refraining from giving effect to EAW.
In this case the Court ruled that the real risk of breaching the fundamental right to an independent court for the person subject to an EAW who is being surrendered to the court which issued the warrant may allow the court which issues the warrant to (exceptionally) refrain from carrying out the EAW (under Article 1(3) of the EAW Framework Decision). Thus, the Court substantially extended the scope of ‘exceptional circumstances’ that may justify limitation of the principle of mutual trust, and by the same, of the principle of mutual recognition of judicial deci-
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It shows that the Commission’s proposal, submitted pursuant to Article 7(1), gives the reason for rejecting the presumption of trust in the Polish legal regime and authorises
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pressed by the individual concerned and any information provided by him, whether there are substantial grounds for believing that he will run a real risk of breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the EAW. It means that the requested individual will need to additionally demonstrate before the court that the authorities have a particular reason in his/her case to use the possibility to exert pressure on the judiciary. Such reason may be, for example, being a member of political opposition, issues related to the State Treasury, but also situations where the authorities of a Member State infringe the principle of presumption of innocence by the statements they make.
courts of other Member States to verify, as the second step of the examination, the individual situation of the person to be surrendered based on EAW, with the view to the ascertained systemic deciency. Under normal circumstances, such examination would be inadmissible. As the second step of the examination, the national court should examine to what extent the systemic or generalised deciencies, as regards the independence of the issuing Member State’s courts, to which the material available to it attests are liable to have an impact at the level of that State’s courts with jurisdiction over the proceedings to which the requested person will be subject. If that examination shows that those deciencies are liable to affect those courts, the executing judicial authority must also assess, in the light of the specic concerns ex-
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Finally, one should not lose sight of numerous proceedings which are still pending before Polish courts, aimed at the verication of legislative solutions adopted by the ruling majority in Poland from the perspective of judicial independence.
5. Conclusion The Polish experience offered a signicant contribution to the denition of an important component of the value of rule of law enshrined in Article 2 TEU: judicial independence.
Those cases include preliminary referrals, including on: suspending a national law on the basis of the principle of effective judicial protection (C-522/18), on the scope of application of Article 19(1) TEU in judicial proceedings that have no EU element at all (C-558/18 and C-563/18), on whether two chambers of the SC are ‘established by law.
The guarantee of observance of the rule of law rests on a judicial system aiming at safeguarding consistency and the autonomy of EU law. Within this framework, Article 19 (1) TEU, which is the expression of the rule of law (Article 2 TEU), entrusts the Court as well as national courts and tribunals with the task of ensuring judicial review in the EU legal system. The key element of this system is the preliminary ruling procedure in Article 267 TFEU through which a dialogue between the Court and independent courts of the Member States is established. An attack on the independence of national courts is therefore tantamount to attacking the very core of the EU’s integration framework – an act that could not possibly be left without a response from the EU institutions.
An attack on the independence of the national courts is... tantamount to an attack on the very core of the Union's legal framework due to a agrant infringement of national law during the appointing process of judges sitting on those benches (C-508/19 and C-487/19), and on the right to judicial control of the appointment process of judges to the SC from the perspective of candidates for judicial positions (C-824/18). There is no doubt that after those questions have been answered by the Court, a huge step in developing the standard of judicial independence in EU law will be made.
The rst rulings of the Court in which the value of the rule of law was invoked, also in the Polish context, conrm the stance of the EU which, faced with the threat, responds by developing its legal system towards creation of barriers to actions which undermine the essence of this system. The Court took a clear position as the guardian of a supranational, autonomous legal order of the EU for which the values laid down in Article 2 TEU are paramount. Member States must acknowledge these attributes of the legal system of the EU if they wish to participate in the process of European integration.
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Nº2 · JANUARY 25, 2020
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Mutual Trust, the Rule of Law and the Charter: A New Age of Judicial Activism By Xavier Groussot and Giuseppe Martinico
trust, rule of law and the Charter, and this is particularly true in the Area of Freedom Security and Justice (AFSJ).
Introduction The last two years have been very exceptional for the case law of the CJEU. So exceptional that a new age of judicial activism may be said to begin. A new age that replaces the so-called age of ‘checks and balances’ - an expression used by the president of the CJEU Koen Lenaerts in the opening chapter of the book Judging Europe’s Judges to describe judicial activity post-Lisbon Treaty.
Two branches of case-law are noticeable. The rst branch limits the automatic application of mutual trust by relying on EU fundamental rights law, the Charter and even now the rule of law (Aranyosi and Căldăraru, C-404/15 and C-659/15 PPU). The second branch, instead, relies on mutual trust as a policy to bolster the application of the Charter and the rule of law (LM or Minister for Justice and Equality (C-216/18 PPU)). This second line is related to the rule of law crisis in Europe.
The seed of this unprecedented development is to be found in Opinion 2/13 on the compatibility of the draft international agreement for EU accession to the ECHR, and the rule of law crisis. Opinion 2/13, with its reference to a ‘structured network of principles’, its defensive tone and its emphasis on the need to respect the effectiveness of EU law and the core principle of mutual trust (see in particular paragraphs 153-194) paradoxically has paved the way for the current situation.
Limiting Mutual Trust or Bolstering the Charter and the Rule of Law As stated in Aranyosi and Căldăraru, the principle of mutual trust requires each of those Member States, save in exceptional circumstances, to treat all the other Member States as complying with EU law, particularly with the fundamental rights recognised by EU law’ (see paragraph 78), especially with regard to the AFSJ.
Mutual Trust Mutual trust is not blind and exceptions to its automatic application have to be construed and claried by the CJEU. All this is to be done in order to allow a possible accession of the EU to the ECHR, Opinion 2/13 dixit.
This logic is now conrmed not only in the recent Dorobantu case (C-128/18) with regard to the European Arrest Warrant, but also in other elds of the AFSJ such as asylum policy
Since the delivery of Opinion 2/13, many judgments of the CJEU have addressed the relationship between the principles of mutual
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cently in Hungary (which is a peculiar case of self-application of LM). In 2019, the CJEU also had to rule on numerous preliminary references put by national courts on the judicial independence of the prosecutors involved in the EAW procedure in Belgium, France, Germany, Lithuania and Sweden.
and child abduction. A fully-edged (and non-absolute) constitutional principle of mutual trust is making its way in EU law. Importantly, the same logic is conrmed in relation to the rule of law as it emerges from LM, where the rule of law is clearly used as a limitation to mutual trust.
National judges have become key players in the rule of law crisis through the use of Article 267 TFEU and the proper enforcement of the AFSJ. They have become bouches de la loi avec un grand ‘L’ or mouths of the rule of law.
The CJEU in LM even goes a step further by using mutual trust as a policy to foster the application of the rule of law and the Charter. Indeed, according to that ruling, the national judge must now assess whether there is both a general and a specic risk connected with a lack of judicial independence of the authorities issuing the EAW and leading possibly to a breach of effective judicial protection as protected by Article 47 of the Charter.
It’s a Bird…It’s a Plane…It’s Article 19 TEU! But the LM strand of case law must be read in combination with the Portuguese Judges case (ASJP, C-64/16) which is not specically about AFSJ but about justice with a capital ‘J’.
A judicial dialogue is also created between the executing judicial authority and the issuing judicial authorities as, pursuant to Article 15(2) of Framework Decision 2002/584, the executing judicial authority must request from the issuing judicial authority any supplementary information that it considers necessary for assessing whether there is such a risk (see LM paragraphs 6177).
In this case, the CJEU views Article 19 TEU as a ‘superprovision’ of EU law, which strongly connects with the application of effective judicial protection and the respect of the rule of law under Article 2 TEU. In that sense, Article 19 TEU constitutes both a specic expression of the rule of law and a lex specialis to the principle of loyalty under Article 4(3) TEU.
Article 19 TEU is a "super-provision" of EU law
In LM, the Irish judges did not nd there was a lack of judicial independence and a breach of effective judicial protection. But in any event, the ‘risk assessment’ of the rule of law situation in the issuing Member States has become very trendy with national judges applying the LM test in many countries, such as in the Netherlands, Germany and more re-
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Three main consequences can be associated with the Portuguese Judges case. First, the case has widened the scope of application of EU law by applying it to rule-of-
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law claims based on Article 2 TEU and to the principle of effective judicial protection outside the scope of the Charter through Article 19 TEU. Second, judicial reliance on Article 19 TEU reinforces the claims of effectiveness and autonomy of EU law following the logic of Opinion 2/13. Third, it supports the development of a substantive rule of law by the national courts and the CJEU, where Article 19 TEU is used as a tool of decentralisation and thus conrms the position of the President of the CJEU who considers the national courts as the ‘arms of EU law’.(1) This broadening leads in fact to a procedural transformation in EU law, where multiple dimensions are now reected in the case law of the CJEU as to the application of the procedural principle of effective judicial protection: a traditional dimension based on effectiveness of EU law (Rewe, Case 33/76); a human-rights dimension based on Article 47 of the Charter (DEB (C-279/09)) and a rule-of-law dimension based on loyalty and Article 19 TEU (Portuguese Judges).
The Age of ‘Procedural Activism’ It results from the recent case law of the CJEU on judicial independence and rule of law that a strong emphasis is put on the application of effective judicial protection either through Article 19 TEU or Article 47 of the Charter (see for a recent application of this, cases AK, CP and DO (Joined Cases C-585/18, C-624/18 and C-625/18)). This rhetoric based on effective judicial protection is also clearly present in two of the most important Charter cases of the last two years: Egenberger (C-414/16) and Cresco Investigation (C193/17). The Charter of Fundamental Rights is nally taking the leitnormen role that is so needed at this time of a rule of law crisis (see Commission v Hungary 2019 following the SEGRO case). Article 47 of the Charter constitutes its alpha provision. The judicial activism of the CJEU is procedural and mostly based on Article 47 of the Charter (the most invoked provision of the Charter and thus its Number 1 provision, at least in terms of statistics); and Article 19 TEU, which may compensate for
the lack of application of the Charter due to a restrictive interpretation of Article 51 of the Charter (see Case TSN from 2019 on minimum harmonisation). This situation contrasts enormously with the judicial landscape after the entry into force of the Lisbon Treaty and the rst years of enforcement of the Charter, which were marked by an overexaggerated judicial pusillanimity fostered by the very relaxed position of the European Commission as to the application of the Charter (see for example the position of the Commission in Åkerberg Fransson and the Ladenburger report). But times have changed! In this dramatic time when we have a rule of law emergency, the CJEU and Commission have aligned their interpretation and understanding of the Charter of Fundamental Rights. Are we now entering the age of ‘procedural activism’?
1. For further development of this, see X. Groussot and J. Lindholm, Taking Rights Seriously and Waiving the Rule-of-Stick in the European Union, draft available at ssrn.com).
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News Highlights 20-26 January 2020 Commission approves French State aid for geothermal exploration and drilling Monday 20 January
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Repayable funds from France to the French Environmental and Energy Management Agency ADEME were approved by the European Commission under State aid rules. The scheme purports to provide repayable guarantee funds to ‘Geodeep’ for a maximum of 10 years, in the light of work on an ‘Enhanced Geothermal System’.
Portuguese court asks CJEU about VAT and insolvency proceedings Monday 21 January
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Koen Lenaerts delivered a speech highlighting some of the main issues in the new Commission’s agenda on the occasion of the Commission’s formal sitting before the Court of Justice. Special attention was paid to Brexit, the European Green Deal, the migration crisis, and the rule of law crisis emerging in several Member States.
Advocate General’s Opinion on access to data for criminal investigations
ECtHR on detention of mentally ill persons in Albania
Tuesday 21 January
Tuesday 21 January
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In his Opinion in H.K. v Projuratuur, Advocate General Pitruzzela suggested that the Court no longer consider public prosecutors as ‘independent administrative authorities’, if they are responsible for directing the pretrial procedure.
In Strazimiri v. Albania, the ECtHR found several breaches of the Convention and noted that there had been ‘a longstanding failure’ by the Albanian authorities to set up a special medical institution for mentally ill persons deprived of their liberty on the strength of court-ordered compulsory treatment.
CJEU precludes Spanish tax tribunals from making preliminary references
Group of central banks assessing central bank digital currencies
Tuesday 21 January
Tuesday 21 January
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The Court of Justice ruled in Banco de Santander SA that Spanish tax tribunals are not a ‘jurisdiction’ pursuant to Article 267 TFEU, thereby reversing its Gabalfrisa case law, which allowed Spanish tax tribunals to make preliminary references in the past.
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A group of central banks was created to share knowledge relating to central bank digital currencies. The group includes the Bank of Canada, the Bank of England, the Bank of Japan, the European Central Bank, the Sveriges Riksbank, the Swiss National Bank, and the Bank for International Settlements (BIS).
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CJEU approves differents compensation regimes for different employment contract types Wednesday 22 January
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Vox starts legal proceedings against the European Parliament Wednesday 22 January
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In Baldonedo Martín (C-177/18), the Court of Justice foundthat there was conformity with EU law of national rules that are different for xed-term and indenite workers concerning how they are treated in terms of compensation upon termination of their contract.
Spanish right wing political party Vox led legal proceedings before the General Court of the CJEU (T32/20) against the European Parliament for its decision to acknowledge Catalonian politicians Carles Puigdemont and Antoni Comín as Members of the European Parliament.
CJEU strengthens the right of access to documents
Commission’s plans for the Environment and Tech agendas
Wednesday 22 January
Wednesday 22 January
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In PTC Therapeutics and MSD Animal Health Innovations, the Court of Justice made clear that the information submitted in procedures for marketing authorisations of medicinal products is not covered by a general presumption of condentiality. It also claried that the application of the legally foreseen exceptions to the right of access to documents must be specically justied.
In Davos, President von der Leyen detailed the Commission’s outlook for environmental policy and technology, referring inter alia to the plans for a Carbon Border Adjustment Mechanism and for a European Open Science Cloud for researchers.
Advocate General: Patent settlements can breach competition rules
Commission priorities for the Conference on the Future of Europe
Wednesday 22 January
Thursday 23 January
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In her Opinion in Generics v Competition and Markets Authority, Advocate General Kokott proposed that the Court of Justice nd that a patent settlement entered into by GlaxoSmithKline with Generics UK and others is in breach of Articles 101 and 102 TFEU.
The Commission published a Communication with its contribution to the debate around the Conference on the Future of Europe, proposing a model focused on citizens’ participation, where Conference-related events will take place all across Europe, reecting Europe’s diversity.
Brexit: EU signs Withdrawal Agreement
Junqueras lodges action and requests interim measures from the General Court
Friday 24 January
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European Council President Charles Michel and Commission President Ursula von der Leyen signed the Agreement on the Withdrawal of the UK in Brussels. On 29 January the European Parliament will hold a vote on the Agreement at a plenary sitting, and on 30 January the Council of the EU will adopt a decision on the conclusion of the agreement on behalf of the EU.
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Friday 24 January
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Oriol Junqueras brought an action (T-24/20) before the EU General Court and requested for interim measures against the European Parliament's decision not to recognize his status as a Member of the European Parliament.
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This Week’s Analysis & Op-Eds CJEU rulings on Protection of Commercial Interests and Third Party Access By Anastasia Karatzia
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Analysis on the CJEU’s judgments in PTC Therapeutics v EMA and MSD Animal Health Innovation v EMA, the very rst judgments from that Court on access to documents regarding marketing authorisation procedures for medicinal products.
AG's Opinion inGenerics (UK) and Others - A welcome clarification on restrictions by object and potential competition in settlements of patent disputes By Tom Pick
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Can the Spanish Central Tax Tribunal make a preliminary reference under Article 267 TFEU? A ‘final’ tribute to Advocate General Saggio and RuizJarabo Colomer By Ricardo García Antón
Editorial Opinion exploring the CJEU’s case law on the notion of ‘court or tribunal’, determining what judicial bodies are entitled to refer a question for preliminary ruling under Article 267 TFEU, and the meaning of the this week’s judgment in Banco de Santander, as well as its potential impact for the judicial dialogue between the CJEU and national courts.
Brexit and I By Allan F. Tatham
Editorial Opinion commenting on Advocate General Kokott's Opinion in UK Generics, a preliminary reference raising several questions on Articles 101 and 102 TFEU, on whether generic companies can be regarded as least potential competitors in situations with pending patent disputes and uncertainty over the outcome.
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Editorial opinion in our ‘Voices of Brexit’ Series. A British lecturer of EU law in Spain gives an account of some of the implications of extracting EU law from the UK’s legal and academic system(s), and reects on the post/Brexit status of UK nationals living on the territory of the EU.
Library - Book Review SIM HAKET
By Anna Wallerman
INTERSENTIA, 2019, 356 pp.
The EU Law Duty of Consistent Interpretation in German, Irish and Dutch Courts READ ON EU LAW LIVE Review of a signicant and welcome contribution to EU legal scholarship. The book provides a thorough legal analysis of an under-researched principle, with the national case studies adding context, nuance, and detail.
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