Nº30
SEPTEMBER 26
2020
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Ulrich Stelkens and Agnė Andrijauskaitė
RESEARCH ON THE COUNCIL OF EUROPE AND GOOD ADMINISTRATION REASONS, METHODS, AND SUBSTANTIVE FINDINGS
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Research on the Council of Europe and Good Administration Reasons, methods, and substantive findings Ulrich Stelkens and Agnė Andrijauskaitė
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I. Introduction The Council of Europe (CoE) has a long-standing record of promoting standards of good administration in the European legal space. Today, these standards encapsulate the entire range of general organisational, procedural and substantive legal institutions meant to ensure a democratically legitimised, open and transparent administration respecting the rule of law. Therefore, these standards are about the ‘limiting function’ of administrative law, that is, its function to protect individuals from arbitrary power, to legitimise administrative action and to combat corruption and nepotism and other ‘diseases’ with which even a democratic polity willing to be governed by the rule of law may be infected. These CoE standards can be described as ‘pan-European princi1. Ulrich Stelkens is Professor of Public Law, German and European Administrative Law at the German University of Administrative Sciences Speyer as well as Senior Fellow at the German Research Institute for Public Administration. Agnė Andrijauskaitė is research associate at the German Research Institute for Public Administration as well as PhD Student at the Vilnius University and the German University of Administrative Sciences Speyer.
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ces Speyer as well as at the German Reples of good administration’. This denomisearch Institute for Public Administration in nation makes an allusion to ‘general princiSpeyer. ples of administrative law’ (‘principes généraux de droit administratif’) as well as to ‘principles of good administration’. Using the adjective ‘pan-European’ instead of ‘EuII. Pan-European General Principles ropean’ is intended to eliminate any confuof Good Administration sion with the denomination ‘general principles of European law’ as a synonym for ‘geStandards of good administration elaborated neral principles of EU law’. Furthermore, within the framework of the CoE derive this use also aims to avoid triggering any from: rash discussion about the ‘nature’ of ‘CoE law’. The 1. The European Convention purpose of this neologism on Human Rights (ECHR) is therefore only to ‘label’ and (relevant) case law of These CoE standards the the the outcome of the work European Court of Huof all the CoE’s organs can be described as man (ECtHR) (namely the caand the ECtHR in the se law ‘labelled’ by the ‘pan-European realm of (general) admiECtHR itself under the genenistrative law without referic term of a ‘good governanprinciples of good rring to any specic conce’ since Moskal v Poland cept of ‘good administra(10373/05) 15 September administration’ tion’ or ‘good governan2009 at [51])); ce’. 2. Other CoE conventions, In spite of its relevance, above all the CoE Conventhe development, the content and the effectitions on Data Protection [ETS No. 108, ETS veness of the pan-European general princiNo. 181 and CETS No. 223], the European ples of good administration is an underCharter of Local Self-Government [ETS No. researched area. This Long Read explores 122] and the Additional Protocol thereto the reasons why this topic deserves careful [CETS No. 207] and the Convention on research, as well as the methods to be used to Access to Ofcial Documents [CETS No. that end. In doing so, we will refer to a pio205]; neering (ongoing) research project on the ‘development of pan-European general prin3. The recommendations of the Committee ciples of good administration by the Council of Ministers (CM) in the realm of adminisof Europe and their impact on the administrative law (the rst one being the CM Resotrative law of its Member States’ which has lution (77) 31 on the protection of the indivibeen funded by the German Research Foundual in relation to acts of administrative autdation since 2015. The project is based at the horities), which currently encompasses all German University of Administrative Scienthe elds of administrative procedural law,
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the ECtHR claim that they reect ‘a broad consensus’ between the Member States of the CoE on the fundamental principles which should govern administrative action and administrative justice despite the differences between their administrative and legal systems.
accountability and judicial review (the standards in these elds have been prominently compiled in CM Recommendation CM/Rec(2007)7 on good administration) as well as the status of public ofcials and the ght against corruption, government liability law, public services and the rights of their users and questions related to the privatisation of those public services.
III. An Under-Researched Area
4. The resolutions, recommendations and guidelines of CoE’s other bodies such as the Parliamentary Assembly, the ‘Venice Commission’ or the Congress of Local and Regional Authorities.
The fact that the development, the content and the effectiveness of the pan-European general principles of good administration is an under-researched area is quite obvious: there is simply no research on them. If at all, the existing literature merely enunciates the case law of the ECtHR on the matter and briey describes the relevant CM recommendations while failing to make a connection between these two. Even the CoE itself receives only little academic attention. There is only one (recent) work that is comprehensively dedicated to the law and policies of the CoE, namely the work of S. Schmahl and M. Breuer (The Council of Europe – Its Law and Policies, OUP 2017).
A closer look at these different sources of CoE standards shows that they are not a loose bundle of various rules in administrative matters but rather form a coherent whole as they build upon each other and as different CoE bodies invoke them in a harmonious and coherent manner. The organs and other institutions of the CoE and the ECtHR have become increasingly aware that all the conventions, recommendations and other documents of the CoE and the case law of the ECtHR are interdependent. This means that these different standard setting activities result in a more or less coherent body of true ‘European administrative law’.
With regard to ‘good administration’ there is abundant literature about Article 41 of the EU’s Charter on Fundamental Rights and the EU’s general principles on administrative procedure, recently, above all in the context of the ReNEUAL Model Rules (www.reneual.eu). But this is mainly a discussion on administrative procedure in the specic context of the EU. The same applies to the general discussion on ‘good governance’ (see, for example H. Addink, Good Governance, OUP 2019) which is more about ‘public administration’ than ‘administrative law’. In contrast, researching on the
The best example of the ‘coherent perception’ of the pan-European general principles of good administration by the institutions and organs of the CoE is the handbook ‘The administration and you’ edited by the CoE (rst edition 1996/1997; second edition 2018). Beyond that, this handbook but also the pertinent CM recommendations and CoE conventions as well as the case law of
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Compared to EU law the effects of the pan-European general principles of good administration on domestic administrative law are quite subtle
petitive advantage over ‘CoE (administrative) law’. Compared to EU law the effects of the pan-European general principles of good administration on domestic administrative law are quite subtle. EU law has a higher degree of legally binding force and legal authority than CoE law which is attributable to the doctrines of primacy, direct effect and the direct applicability of EU law. The academic resources of the EU Member States go, therefore, rstly into exploring the latter eld, which is more visibly incorporated into their respective legal systems and, hence, their legal ‘awareness’.
pan-European general principles of good administration means focusing on the CoE as a ‘legal framework’ and looking for the ‘normative relevance’ of the work of the CoE in the realm of administrative law for the national legal orders of its Member States. Finally, the existing research on European Human Rights Law and the (enforcement) of a ‘European Rule of Law’ (vis-à-vis ‘backsliding states’) may be qualied as an important element of what may be called ‘European Constitutional Law’ on which the research on the pan-European general principles of good administration necessarily builds on – but both research areas should not be equated.
By contrast, the CoE is not a supranational organisation but an intergovernmental entity. ‘CoE law’ may only have a harmonising effect on the law of the Member States of the CoE to the extent to which each of them is willing to adapt its national legal order to ‘CoE
In our view, the reasons why the CoE’s work on good administration has received only minimal scholarly attention may be quite simple: EU (administrative) law has a clear com-
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fects, which means measuring the effectiveness of the pan-European general principles of good administration. This was namely the approach adopted in ‘phase 1’ of the research project referred to at the beginning of this Long Read. Such approach warrants, as a rst step, measuring the effectiveness of CoE’s standards with regard to the CoE’s Member States. It is necessary to explore how deeply the pan-European general principles of good administration are rooted in the domestic legal systems of the CoE Member States. To draw conclusions on the overall effectiveness of the pan-European general principles of good administration, it is necessary, as a second step, to analyse the national results in their entirety.
requirements’. In the end it is up to each and every Member State of the CoE (in concreto their legislators, governments, administrations and courts) to make ‘CoE law’ effective by being open to adapting its national (case) law and administrative practices to it. The impact of the pan-European general principles of good administration on the Member States can therefore only be assessed from the perspective of the domestic law of its Member States (bottom up approach). The main question is, if and how domestic administrative law is inuenced by these principles, and if and how it is ensured that national law which is already compliant with these principles remains that way. Research on pan-European general principles of good administration is therefore necessarily a quite complex research endeavour: It necessitates (the willingness to acquire) a sound knowledge of national administrative law, comparative administrative law and its methods and, nally, on European human rights law and the European rule of law requirements. It cannot be done as an individual (desk) study but has to be a collective work of scholars from different Member States of the CoE – which in itself also requires considerable coordination effort even if all participating researchers reliably work through their work packages (which was fortunately the case in our project).
1. The First Step This rst step requires ‘insider knowledge’ from experts on the national administrative law in the said states. This is why we asked scholars from 28 selected CoE Member States to analyse the effectiveness and (possible) impact of the pan-European general principles of good administration on their respective domestic legal orders and deliver reports thereof. Striving for comprehensiveness would have implied the inclusion of all 47 CoE Member States in our research. However, organisational and nancial limitations aside, this approach might not necessarily have delivered a clear overall picture of the effectiveness of the pan-European general principles of good administration within the territory of the CoE. It might well have distorted the picture without letting us see the forest for the trees. Therefore, we focussed only on those coun-
IV. Research Methods (Phase 1) A key research endeavour is to explore whether or not, at least in the area of administrative law, the CoE is more than only a paper tiger producing norms without any real-life ef-
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refore to identify the possible paths of reception by which the pan-European general principles of good administration could nd their way into national law. In the end, four such paths were considered worth exploring further:
tries where we expected – by means of an educated guess – to be able to get a realistic and objective assessment of the role that the pan-European general principles of good administration play in the concrete national legal order. Thus, we limited ourselves to including the Albanian, Armenian, Austrian, British, Belgian, Bulgarian, Croatian, Czech, Dutch, Estonian, Finnish, French, Georgian, German, Hungarian, Italian, Latvian, Lithuanian, Norwegian, Polish, Portuguese, Romanian, Serbian, Slovenian, Spanish, Swedish, Swiss, and Turkish perspectives. In the end, we are convinced that we reached a critical mass of Member States for our research allowing us to extrapolate overall trends. However, we attached great importance to make transparent the criteria justifying the choice of countries we included in (and excluded from) our research. The most debatable decision we took may be the exclusion of Russia from our research. Unfortunately, it would go beyond the scope of this article to develop the reasons for this decision and the choice of countries in general.
1. Reception of the pan-European general principles of good administration through the national legislator; 2. Reception of the pan-European general principles of good administration through national ‘Codes of Good Administrative Behaviour’ and ‘ombudsprudence’; 3. Reception of the pan-European general principles of good administration through the application of the European Convention of Human Rights; 4. Direct application of the pan-European general principles of good administration ‘faute de mieux’.
Furthermore, we assumed that, if some convincing examples for such a reception in a given domestic legal order can be found, this would allow us to make an overall assessment of the effectiveness or at least of the potential impact of the pan-European general principles of good administration in this legal order.
The bottom-up approach is based on the (already mentioned) assumption that it is up to each and every Member State of the CoE to make ‘CoE law’ effective in its national legal order. In our view, the only way to assess this kind of openness in a given legal order is by using an exemplary approach and therefore a qualitative approach. We assumed that there are several paths of reception by which – at least theoretically – a national legislator, government, judge or administrator could ‘receive’ the pan-European general principles of good administration and transform them into elements of national law. The bedrock issue in the preparation of the project was the-
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We discussed these ‘paths of reception’ and the general approach of our book in two workshops with the national experts. Together, we worked out methodological issues and a questionnaire that was meant to guide the research, and exchanged ideas regarding the project and insights on national administrative law.
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Finally, the analysis of the different modes of operation of the pan-European general principles of good administration allowed us to construct their normative functions within the framework of the CoE. We assumed that the pan-European general principles of good administration are to be understood as a concretisation of the ‘administrative law components’ of the ‘founding values’ of Article 3 of the Statute of the Council of Europe (SCoE) which lays down the administrative law obligations a Member State enters into when joining the CoE. This part of our research – as well as the description of the consequences of this specic normative relevance of the pan-European general principles of good administration was quite challenging because it gave the opportunity to draw on the results of research on
2. The Second Step National analyses allowed us to address, in a second research step, the question of the overall effectiveness of the pan-European general principles of good administration in harmonising the national administrative law of the Members States of the CoE. Firstly, we analysed the interaction between national administrative law and the pan-European general principles of good administration. This mapping provides an explanatory framework for understanding why these principles have different effects in different legal orders, work in different ways – and thus have different modes of operation within the national legal orders. Analysing these different modes of operation makes it clear that adapting national administrative law to the pan-European general principles of good administration is a process which is at different stages of development in different Member States: the pan-European principles cannot be perceived in a binary manner, that is, as either effective or not effective within a national legal order. They can be effective in the different national legal orders to varying degrees.
(1) European Human Rights Law (namely on the ECHR and the case law of the ECtHR); (2) the ‘European Rule of Law’ and the problem of ‘democratic backsliding’; (3) General International Law (namely on the recent research on Articles 31 to 33 of the Vienna Convention on the Law of Treaties) and (4) EU Implementation – which was helpful because it sheds light on the role of the national government, the legislator, the administration and the national judiciary when a state wants (or has to) take up ‘foreign’ political ideas and legal concepts, to transform them into a national political agenda and to put this national political agenda into practice.
How effective are the pan-European general principles of good administration?
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- (local) public services and the rights of their users;
IV. Next steps: Phase 2 ‘Phase 2’ of the project is intended to develop a ‘common frame of reference’ of the pan-European general principles of good administration that reects the common experiences of the CoE Member States and are thus a part of the ‘common heritage’ of the people of these states within the meaning of the preambles of the SCoE and the ECHR. This calls for in-depth exploration of the background, the function and the meaning of these principles, and the experiences which have led to their adoption. Thus, we want to organise the different pan-European general principles of good administration with regard to their ‘specication’ in a framework consisting of issues such as
- freedom of information, transparency and data protection; - administrative justice and administrative oversight; and - state liability. This framework could be lled in like a textbook, with the different sources of the panEuropean general principles of administrative law illustrated with the preparatory works done within the CoE, the case law of the ECtHR on the ‘principle of good governance’, and the work of other institutions of the CoE (like the ‘Venice Commission’ and GRECO), as well as with ‘good’ cases from the courts of the CoE Member States and relevant national scholarship. Such a use of national sources could ‘unlock’ the practical experience of each Member State for all the other Member States without the need to rst acquire knowledge about the specicities of their respective legal systems because the pan-European general principles of good administration would serve as a common reference framework. However, the work on ‘phase 2’ is still in its initial stage.
- administrative organisation (administration and government, distribution of competences, privatisation, local self-government); - the status of civil servants and public employees; - administration and law (sources of administrative law, legality of the administration, discretion); - legal certainty and the protection of legitimate expectations; - administrative decision making, administrative procedures and procedural rights (including spatial planning procedures); - administrative sanctions;
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The Work of the Council of Europe on Good Administration An Outline of Substantive Findings Ulrich Stelkens and Agnė Andrijauskaitė 1
nistration, their scope and their subject matter reveals that they are much more extensive than initially assumed. This concerns both the relevant case law of the European Court of Human Rights (ECtHR) as well as the work of the organs and institutions of the Council of Europe (CoE). The latter has often proven to be very thorough. Sometimes the CoE organs even undertook pioneering work in the eld. To give an example, Resolution (77) 31 on the protection of the individual in relation to acts of administrative authorities was prepared by a – at the time groundbreaking – comparative research on the legal provisions and practice aimed at ensuring the protection of the individual with regard to ‘administrative acts’ published (unfortunately only as a brochure in form of a copy of a typewritten original) in 1975.
In the rst Long Read of this Weekend Edition, we tackled the reasons and methods for researching the development of panEuropean general principles of good administration by the Council of Europe and their impact on the administrative law of its Member States. We will now present the main results of our research so far, namely the results of ‘phase 1’ of our project. A complete description of such results has recently been published in U. Stelkens and A. Andrijauskaitė (eds.), Good Administration and the Council of Europe - Law, Principles, and Effectiveness, OUP, 2020. This publication, as explained before, marks only the end of ‘phase 1’ of the project.
I. Taking Stock of the ‘Pan-European General Principles of Good Administration’
They go well beyond relations between the administration and individuals, and form – as a coherent whole – a ‘toolbox’
Looking at the effectiveness of the panEuropean general principles of good administration presupposes that these principles are of quantitative and qualitative relevance and, thus, have a realistic potential to be of guidance for national legislators, governments, administrations and courts. A closer analysis of the legal sources of the panEuropean general principles of good admi-
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In sum, it turned out that the pan-European general principles of good administration cover the entire range of general organisational, procedural and substantive legal institutions meant to ensure a democratically legitimised, open and transparent administration respecting the rule of law. They go well beyond relations between the administration and individuals, and form – as a coherent whole – a ‘toolbox’ containing legal tools which serve to ght arbitrary exercise of administrative power, corruption and nepotism, to protect and promote individual rights, and, furthermore, to guarantee an open and transparent administration as well as the effective implementation of democratic policy choices and effective public services.
II. Effectiveness of the Pan-European General Principles of Good Administration As already explained in the rst Long Read of this Weekend Edition, measuring the effectiveness of the pan-European general principles of good administration means, as a rst step, measuring their effectiveness with regard to the Member States of the CoE which allows as, a second step, to draw conclusions on the overall effectiveness of the pan-European general principles of good administration. A key issue is therefore to elucidate if and to what extent the panEuropean general principles of good administration shape national administrative legal systems and whether pan-European general principles of good administration have a certain harmonising effect across its Member States.
Do pan-European general principles of good administration have a harmonising effect?
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ciples lead to a certain harmonisation of the legal orders of the CoE Member States despite the many fundamental differences between their administrative and legal systems. Nevertheless, the reception of these principles is a process which is at different stages of development in the different Member States. This observation leads to the broad classication of the surveyed legal systems into the ‘old’ member states and the so-called ‘transition countries’ – countries which were challenged by a transition process from authoritarian or socialist regimes into democracies governed by the rule of law after and/or in the context of their admission to the CoE (like all the ‘post-socialist states’ of Central and Eastern Europe, but also – in a different manner – Portugal, Spain and Turkey). In the rst category of countries, the said principles were already existent at their inception as meta-concepts since national administrative legal systems were mostly selfcontained and hence inuenced the CoE level from below. In the second category, the reverse trend is discernible – the panEuropean principles were extraneous sources helping to consolidate democracy, the rule of law and the protection of individual rights above all by enhancing the ‘limiting function’ of administrative law in challenging circumstances that these countries have faced. They were to a variable degree but mostly effective in these states and continue to give guidance as to how to develop an administrative legal framework.
In light of the analysis of the level of awareness and impact in selected CoE Member States (listed in the rst Long Read of this Weekend Edition), it seems clear that the pan-European general principles of good administration are transposed, implemented and enforced within the national legal orders of the CoE Member States to different degrees and to different extents; yet they are never considered as completely irrelevant. This was more or less what we expected. What we did not expect was, however, to what extent this approach would shed light on the differences and specicities of national administrative law, of the national conceptions of the purpose of administrative law, of the relationship between law and administration and of the role of the judge in shaping administrative law. As it turned out, the identied paths of reception seem to work like a contrast medium highlighting core features of national administrative law and national legal thinking about the purposes and functions of administrative law and, thus, the administrative legal mindsets underlying the administrative law of the analysed CoE states. Therefore, looking at the impact of the pan-European general principles of good administration in national law is an interesting compromise between a microcomparison of (individual) features of administrative law (the right to be heard, proportionality, local self-government, state liability, and so on) and a macro-comparison between whole legal orders in order to classify them into different groups or legal families.
On this basis, it is worth exploring if the panEuropean general principles of good administration ‘as a package’ are not only of political but also of normative relevance in the relationship between the CoE and its Member States. From this perspective, it can be con-
As for the overall effectiveness of the panEuropean general principles of good administration, the ndings of the national reports point to the conclusion that these prin-
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‘administrative law component’ of the founcluded that such a normative relevance can ding values of the CoE is effectively put in be derived from this CoE Member States’ place by creating and ensuring a democratipractice. The pan-European general princically legitimised, open and transparent admiples of good administration ‘as a package’ is nistration respecting the rule of law. The difa part of the CoE’s regional international ferent pan-European general principles of law, namely as an authentic (but still develogood administration with their different ‘speping) concretisation of the administrative cications’ (civil service, local selflaw components of the founding values of government, individual rights, administratithe CoE within the meaning of Article 3 of ve procedure, administrative justice, transthe Statute of the CoE (SCoE). Thus, they parency, and so on) are the different building can be used by the CoE organs and institublocks (of varying shapes, sizes and functions and by the ECtHR as normative evations) which may be used and combined to luation standards for assessing the comconstruct the legal framework. However, pliance of CoE Member States’ national adthey can be used in diffeministrative law with rent combinations to CoE law. This does not build the system. mean that the panAs a ‘package’ these principles European general prinleave a wide margin of This ‘building block ciples of good administheory’ should allow for tration form a strict set of appreciation to the CoE a ‘good administration rules to be observed in Member States test’ which should help each and every aspect. with assessing whether a As a ‘package’ these princertain national ‘conciples leave a wide marguration’ of national administrative law and gin of appreciation to the CoE Member Staadministrative justice violates Article 3 tes as to which principles (included in the SCoE (as concretised by the pan-European ‘package’) are to be transposed, implemengeneral principles of good administration as ted and enforced into the national legal a ‘package’). Thus, the pan-European prinsystem, to what extent and under which circiples can be used as evaluation standards, cumstances. namely to assess if a certain ‘conguration’ of national administrative law is no longer a Nevertheless, building on research on the mere ‘mise en œuvre’ of these principles but ‘democratic backsliding issue’, we think a violation of the limits of the wide margin that ‘true’ respect for pan-European general of appreciation that Member States enjoy principles of good administration is only poswithin the remit of the CoE. sible by transposing, implementing and enforcing a sufcient (minimum) number of them in different ‘specications’ and ‘exible combinations’. Only then can national administrative law provide for checks, limits and balances of the powers so that the
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News Highlights 21 to 25 September 2020
European Convention of Human Rights’ 70th anniversary
State aid and EU Emissions Trading System: updated Guidelines
Monday 21 September
Monday 21 September
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The European Court of Human Rights held a conference to mark the 70th anniversary of the European Convention on Human Rights, attended by leading gures from the judicial world, to reect on the role of the ECHR in strengthening the rule of law and democratic governance and its major achievements over the past 70 years.
The Commission adopted EU Emission Trading System-State aid Guidelines in the framework of the European Green Deal and EU policy to combat climate change and curb greenhouse gases, referred to in the Commission President’s State of the Union address, as part of the plan to avoid ‘carbon leakage’.
EU Pledge for ‘green recovery’ authorised for UN Biodiversity Summit
ECB publishes guide to assessing how banks calculate counterparty credit
Monday 21 September
Monday 21 September
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The Council of the EU authorised the Commission on behalf of the EU to endorse the ‘Leaders’ Pledge for Nature’, a voluntary declaration proposed by the Commission, at the Leaders’ Event for Nature and People which will take place virtually on 28 September, ahead of the United Nations Biodiversity Summit on 30 September 2020.
The European Central Bank published the nal version of its guide outlining the methodology it uses to assess how euro area banks calculate their exposure to counterparty credit risk and advanced credit valuation adjustment risk.
State aid recovery interest rates and reference/discount rates applicable from 1 Oct 2020
Commission in-depth investigation into alleged illegal State aid in allocation of mobile radio frequencies by Poland to telecoms operator Sferia
Monday 21 September
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Tuesday 22 September
A Notice on State aid recovery interest rates, reference and discount rates was published, to be calculated in accordance with the Communication from the Commission on the revision of the method for setting the reference and discount rates.
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The European Commission announced its decision to open an in-depth investigation to assess whether the allocation by the Polish authorities of a frequency block for the provision of 4G services to the telecommunications operator Sferia S.A. is in line with EU State aid rules.
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Court of Justice’s ruling in Hinkley Point C case: how to apply State aid rules to aid for the construction of nuclear power stations Tuesday 22 September
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The Court of Justice dismissed the appeal in Austria v Commission (C-594/18 P) against the General Court’s ruling in T-356/15 in which it was called on to clarify, for the rst time, whether the construction of a nuclear power station may benet from State aid approved by the Commission pursuant to Article 107(3)(c) TFEU.
ECtHR: Russian authorities breached prohibition of torture and procedural rights in police ill-treatment cases Tuesday 22 September
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EU imposes additional sanctions concerning Libya for human rights abuses and arms embargo violations Tuesday 22 September
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The Council of the EU imposed additional restrictive measures on two Libyan individuals and three entities, two Jordanian and Turkish shipping companies and a Kazakhstani airline, on the basis of actions that threaten the peace and security of Libya or obstruct the successful completion of its political transition.
No breach of EU law by national law requiring authorisation for short-term lets of non-residential property to a transient clientele
The European Court of Human Rights gave its judgments in X and Y v. Russia (application no. 43411/06) and in Chudalovy v. Russia (application no. 796/07), nding a breach of Article 3 ECHR in both cases, the prohibition of torture and of inhuman or degrading treatment, under its substantive and procedural limbs, on account of (i) the disproportionate use of force by police and prison ofcials and (ii) the lack of an effective investigation.
Tuesday 22 September
AG Szpunar recommends Court of Justice dismiss appeal brought by former Commissioner John Dalli over OLAF investigation leading to his resignation
European Labour Authority coordinates its first ever concerted inspection
Tuesday 22 September
Advocate General Szpunar advises the Court of Justice to rule in favour of the appellant in Dalli v Commission (C-615/19 P), an appeal challenging a General Court ruling (T-399/17) dismissing an action brought by Mr John Dalli for compensation as a result of the alleged illegal conduct of the European Commission and the European Anti-Fraud Ofce related with his dismissal as a Member of the Commission.
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The Grand Chamber of the Court of Justice ruled that national legislation and local rules requiring an authorisation before furnished accommodation can be let on a short-term basis to a transient clientele which does not take up residence there is not in breach of EU law, namely the Services Directive 2006/123, in joined cases C-724/18 and C-727/18, Cali Apartments and Procureur général près la cour d’appel de Paris and ville de Paris.
Tuesday 22 September
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The European Labour Authority, an EU agency created in 2019 to help Member States enforce EU labour law, carried out its rst concerted inspection, targeting undeclared work in the construction sector.
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Commission proposal to revise Carcinogens and Mutagens Directive Tuesday 22 September
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Commission proposes upgrade on the Single European Sky regulatory framework in light of European Green Deal
The Commission proposed a fourth revision of the Carcinogens and Mutagens Directive 2004/37 to set new or revised limit value for three substances, to provide improved protection in the workplace across a wide range of sectors, in collaboration with scientists and stakeholders, and as part of the ‘Beating Cancer Plan’ in the workplace.
Tuesday 22 September
Parliament adopts legislative initiative report on EU mechanism to protect and strengthen democracy, the rule of law and fundamental rights
EBA, EIOPA and ESMA’s first joint risk assessment report of financial sector since COVID-19 outbreak
Wednesday 23 September
The European Commission proposed an upgrade of the Single European Sky regulatory framework in order to modernise the management of European airspace and to establish more sustainable and efcient ightpaths, in line with the European Green Deal.
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The European Parliament’s Civil Liberties Committee adopted a legislative initiative report that envisages an EU mechanism to protect and strengthen democracy, the rule of law and fundamental rights, specically the EU legal order and the fundamental rights of its citizens from the deterioration of Article 2 TEU values.
European Ombudsman: no maladministration in the Commission refusing to grant full access to documents based on the protection of international relations and the privacy of persons Wednesday 23 September
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The European Ombudsman issued a decision in case 968/2020/DL, concluding that no maladministration had been committed by the Commission’s refusal to grant full access to documents relating to a meeting between the Commission, Member States and stakeholders on scientic cooperation with China.
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Wednesday 23 September
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Three European Supervisory Authorities have issued a report highlighting issues and challenges to protability, solvency, liquidity, banks’ asset quality and economic and market uncertainty, and propose specic policy actions in response.
ECB will accept sustainability-linked bonds as collateral Wednesday 23 September
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The European Central Bank announced that bonds with coupon structures linked to certain sustainability performance targets will become eligible as collateral for Eurosystem credit operations. They will also be eligible for Eurosystem outright purchases for monetary policy purposes (under the APP and the PEPP), subject to compliance with programme-specic eligibility criteria.
Nº30 · SEPTEMBER, 26 2020
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General Court partially annuls SRB Decision on the calculation of ex ante contributions to the SRF for 2017 Wednesday 23 September
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General Court confirms illegality of Spanish State aid in the form of tax benefits for finance lease agreements in the shipyards market
The General Court handed down its judgments in Landesbank Baden-Württemberg v CRU (T-411/17), Hypo Vorarlberg Bank v CRU (T-414/17), and Portigon v CRU (T-420/17), three actions for annulment against the Decision of the Executive Session of the Single Resolution Board (SRB) of 11 April 2017 concerning the calculation of the applicants’ ex ante contributions to the Single Resolution Fund (SRF) for 2017, annulling the SRB’s decision in so far as it concerns the applicants.
Wednesday 23 September
AG Bobek: Interim appointment of Romanian Chief Judicial Inspector and establishment of specific prosecution section for members of the judiciary are contrary to EU law
How does EU law limit the way in which universities appoint university professors? Pending preliminary ruling published
Wednesday 23 September
The General Court delivered its renvoi judgment in Spain v Commission (Lico Leasing) (joined cases T515/13 RENV and T-719/13 RENV), conrming that the Spanish tax system applicable to certain nance lease agreements entered into by shipyards (by which shipping companies benet from a 20-30% price reduction when purchasing ships constructed by Spanish shipyards) amounts to State aid and that the unlawful aid granted under that system must be recovered from the beneciaries.
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Advocate General Bobek issued his Opinion in joined cases C-83/19, C-127/19, C-195/19; C-291/19; C355/19; and C-397/19, on whether the Cooperation and Verication Mechanism established by Commission Decision 2006/928 to monitor Romania’s progress in areas of judicial reform and corruption is an act of an institution of the EU, and whether the requirements laid down in the reports prepared in the context of that mechanism are binding on Romania, which was not a Member State at the time of its adoption.
Deputy Director-General for the migration and home affairs department appointed by Commission Thursday 24 September
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Mr Johannes Luchner was appointed by the Commission as a Deputy Director-General in the DirectorateGeneral for Migration and Home Affairs, and will take up the position on 1 October 2020.
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Thursday 24 September
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Ofcial publication was made of a request for a preliminary ruling (C-265/20) from the Court of Appeal of Antwerp, Belgium in FN v Universiteit Antwerpen, concerning the rules for appointment of academic staff in Belgian universities.
Court of Justice dismisses appeal in Prysmian cartel case Thursday 24 September
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The Court of Justice dismissed competition law appeal Prysmian and Prysmian Cavi e Sistemi v Commission (C-601/18 P) against the General Court’s judgment of 12 July 2018 in Prysmian and Prysmian Cavi e Sistemi v Commission (T-475/14). The General Court had dismissed the applicants’ action seeking the reduction of the ne against them and annulment of Commission Decision of 2 April 2014 relating to proceedings under Article 101 TFEU (Case AT.39610 – Power Cables).
Nº30 · SEPTEMBER, 26 2020
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ECtHR: excessive length of proceedings in Romania and Slovakia breached right to a fair trial Thursday 24 September
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The European Court of Human Rights delivered two judgments on the prohibition of excessive length of proceedings under the right to a fair trial in Article 6(1) of the European Convention on Human Rights, nding that this requirement was breached in criminal proceedings by Romania and in administrative proceedings by Slovakia.
Energy company Nord Stream brings appeal before the Court of Justice concerning the inadmissibility of its action for annulment against Directive 2019/692 Thursday 24 September
Court of Justice confirms legality of deprivation of liberty measure on the basis of a prior offence from the one leading to defendant’s surrender under a different EAW Thursday 24 September
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The Court of Justice ruled in Generalbundesanwalt beim Bundesgerichtshof v XC (C-195/20 PPU) that a measure involving deprivation of liberty against a person referred to in a rst European Arrest Warrant (EAW), which was taken on the basis of a prior offence different from the one justifying his surrender under a second EAW is not contrary to EU law, only if that person’s departure from the Member State issuing the rst EAW was voluntary and the judicial authority of the second EAW consented to the prosecution.
AG’s Opinion: management of a postal current account for the collection of taxes by Poste Italiane was not a service of general economic interest
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Thursday 24 September
Ofcial publication was made of an appeal (C-348/20 P) brought by Nord Stream 2 AG against the order of the General Court in Nord Stream 2 v Parliament and Council (T-526/19). The General Court found the annulment action against Directive 2019/692 amending Directive 2009/73 on common rules for the internal market in natural gas to be inadmissible.
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Advocate General Campos Sánchez-Bordona delivered his Opinion in Poste Italiane (C-434/19), concerning the compatibility with EU competition and State aid law of Italian rules that reserved to Poste Italiane, as a statutory monopoly, the management of the postal current account intended for the collection of the local municipal real estate tax (ICI).
Extradition requests from third countries: AG Hogan proposes the Court of Justice depart from Petruhhin case law
AG Tanchev suggests the Court of Justice uphold General Court judgment annulling ECHA decision on compliance check of dossier evaluation
Thursday 24 September
Thursday 24 September
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Advocate General Hogan delivered his Opinion in Generalstaatsanwaltschaft Berlin (C-398/19), on a Member State’s TFEU obligations where national legislation prohibits extradition of its own Member State nationals to third countries, and how that should apply to the extradition of nationals from other Member States residing within its borders.
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Advocate General Tanchev proposed in his Opinion that the Court dismiss both grounds of appeal on the admissibility of the action and on the substance of ECHA’s powers, concerning General Court ruling T-283/15, which annulled a decision by the European Chemicals Agency that Esso Rafnage breached the REACH Regulation.
Nº30 · SEPTEMBER, 26 2020
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Completing the Capital Markets Union: the Commission’s new Action Plan
Digital Finance Package adopted by the European Commission
Friday 25 September by Dolores Utrilla
Friday 25 September
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The European Commission presented its much-awaited new package of measures for completion of the Capital Markets Union, needed to complement the Banking Union which was launched in 2012, an ongoing and complex project aiming to deepen and integrate the capital markets which requires measures and regulatory amendments in a wide variety of areas at EU and national levels.
The European Commission adopted its Digital Finance Package, a complex set of initiatives aiming to achieve a comprehensive EU regulatory framework for nancial services t for the digital age, alleviating the fragmentation in the Single Market for digital nancial services and promoting a data-driven nancial sector.
Mandatory minimum fees for architects and engineers: preliminary questions published on direct effect and compatibility with EU law
ESA prolongs recommendation to prevent delays and ease market access for protective equipment and medical gear
Friday 25 September
Friday 25 September
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The German Federal Court of Justice’s preliminary questions to the Court of Justice, made on 15 June 2020, in Thelen Technopark Berlin GmbH v MN (C-261/20) were published, by which the referring court asks whether national legislation on minimum rates for the fees of architects and engineers is compatible with EU primary law and the Services Directive 2006/123.
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The EFTA Surveillance Authority adopted a decision amending its previous Recommendation of 24 March 2020 on conformity assessment and market surveillance procedures within the context of the COVID-19 threat, in order to prolong its period of application.
Disclosure of information by a financial journalist and the EU’s market abuse rules: Preliminary questions published Friday 25 September
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The Paris Court of Appeal’s request to the Court of Justice for a preliminary ruling was published for A. — Other party: Autorité des marchés nanciers (C-302/20). Clarication is sought of how the EU’s market abuse rules apply in relation to an annulment action brought by a nancial journalist against a decision of the Penalties Commission of the Financial Markets Authority. By that decision he was ned 40,000 euros for having disclosed information relating to press articles relaying market rumours concerning issuers of nancial instruments.
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Nº30 · SEPTEMBER, 26 2020
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Analyses & Op-Eds The Court of Justice rules that cities Clarifications on the Member States’ (such as Paris) can crack down on re- freedom to determine public policy obpeated short-term rentals of private ho- jectives under Article 107(3)(c) TFEU mes without breaching EU law READ MORE ON EU LAW LIVE By Małgorzata Cyndecka By Diana Calciu
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Op-Ed on the Court of Justice’s ruling Cali Apartments (Joined Cases C-724/18 and C-727/18), by which the Grand Chamber of the Court adds a new stone to the legal framework governing the contemporary phenomenon of short term rentals via digital platforms.
Analysis of the Court of Justice’s Grand Chamber ruling, a highly awaited judgment, Austria v Commission (C-594/18 P), or Hinkley Point C, an appeal against the General Court’s ruling in Austria v Commission (T356/15), examining ‘the right to provide public support to the development of nuclear energy’.
The SRB’s decision-making process un- A Blanket Too Narrow: On the Autoder scrutiny again nomy of Member States to Cut Particularly High Special Pensions READ MORE ON EU LAW LIVE By Laura Wissink Analysis of the General Court’s judgments in cases Landesbank Baden-Württemberg v CRU (T-411/17), Hypo Vorarlberg Bank v CRU (T-414/17), and Portigon v CRU (T-420/17) in which it annulled the Decision of the Executive Session of the Single Resolution Board (SRB) of 11 April 2017 on the calculation of the ex ante contributions to the Single Resolution Fund (SRF) for 2017 in so far it concerned the applicants’ contributions.
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By Luca Ratti
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Analysis of the Court of Justice’s ruling in YS, (C223/19), in relation to the applicant’s claim that he had been discriminated against on grounds of sex and/or age, since retired men would be negatively affected much more than women by an Austrian legislative ‘containing measure’ affecting his occupational pension, on the basis of Directive 2006/54/EC and marginally also of Directive 2000/78.
Nº30 · SEPTEMBER, 26 2020
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Library - Book Review MARLEEN BOTMAN AND JURIAN LANGER
By Anna Wallerman Ghavanini READ MORE ON EU LAW LIVE
FIDE PUBLICATION: NATIONAL COURTS AND THE ENFORCEMENT OF EU LAW. THE PIVOTAL ROLE OF NATIONAL COURTS IN THE EU LEGAL ORDER A review of ‘the achievement of the general rapporteur, Professor Michael Dougan, to have managed to pinpoint, within these classical topics of EU law, perspectives that are fresh and exciting, inviting national rapporteurs to reect upon the impact of the very latest developments of Court of Justice’s (CJEU) jurisprudence within their Member States’.
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