Tag: case law

Summaries of judgments: Minister for Ecological Transition and Prime Minister | Puig Gordi e o

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Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 22 December 2022, Ministre de la Transition écologique and Premier ministre (Liability of the State for air pollution), Case C‑61/21, EU:C:2022:1015

Reference for a preliminary ruling – Environment – Directives 80/779/EEC, 85/203/EEC, 96/62/EC, 1999/30/EC and 2008/50/EC – Air quality – Limit values for microparticles (PM10) and nitrogen dioxide (NO2) – Exceeded – Air quality plans – Damage caused to an individual on account of deterioration of the air resulting from the exceedance of those limit values – Liability of the Member State concerned – Conditions for establishing that liability – Requirement that the rule of EU law infringed be intended to confer rights on the individuals who have been harmed – No such intention

Facts

JP argues that the deterioration of the ambient air quality in the Paris agglomeration, where he lives, was the result of a breach by the French authorities of their obligations under Directive 2008/50, in so far as the limit values for microparticles (PM10) and nitrogen dioxide (NO2)  laid down in Annex XI of that directive had been exceeded. JP applied to the tribunal administratif de Cergy-Pontoise (Administrative Court, Cergy-Pontoise, France) seeking, inter alia, annulment of the implied decision of the Prefect of Val-d’Oise (France), which is part of the agglomeration of Paris, refusing to take the necessary measures to address his health problems linked to air pollution in that agglomeration, problems which began in 2003; and compensation from the French Republic for the various heads of damage which he claims to have suffered on account of that pollution.

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Summaries of judgments: Staatssecretaris van Justitie en Veiligheid | Senatsverwaltung für Inneres und Sport

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Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 7 September 2022, Staatssecretaris van Justitie en Veiligheid (Nature of the right of residence under Article 20 TFEU), Case C‑624/20, EU:C:2022:639

Reference for a preliminary ruling – Directive 2003/109/EC – Status of third-country nationals who are long-term residents – Scope – Third-country national with a right of residence under Article 20 TFEU – Article 3(2)(e) – Residence solely on temporary grounds – Autonomous concept of EU law

Facts

In 2013, E. K., a Ghanaian national, obtained, under Article 20 TFEU, a residence permit in the Netherlands as a family member of a Union citizen, on account of the existence of a relationship of dependency between herself and her son, who holds Netherlands nationality. In 2019, on the basis of the national legislation transposing Directive 2003/109 into domestic law, she submitted an application for a long-term resident’s EU residence permit. However, the Netherlands authorities refused her application, on the ground that the right of residence obtained under Article 20 TFEU is temporary in nature, within the meaning of that directive, and therefore excluded from its scope of application.

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Summaries of judgments: RT France v Council (T-125/22)

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Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgment of the General Court (Grand Chamber), 27 July 2022

Case T-125/22[1] RT France v Council

Common foreign and security policy — Restrictive measures adopted in view of Russia’s actions destabilising the situation in Ukraine — Temporary prohibition of dissemination and suspension of authorisations for the dissemination of certain media content — Inclusion on the list of entities to which the restrictive measures apply — Competence of the Council — Rights of the defence — Right to be heard — Freedom of expression and information — Proportionality — Freedom to conduct a business — Principle of non-discrimination on grounds of nationality

1. Facts

Following the military attack perpetrated by Russia against Ukraine on 24 February 2022, the Council of the European Union adopted, on 1 March 2022, new restrictive measures against Russia, namely Decision 2022/351[2] and Regulation 2022/350[3].

The purpose of those acts is the temporary prohibition of actions for propaganda of that military assault by means of certain media under Russian control. Thus, any operator established in the European Union is prohibited from broadcasting content produced by legal persons, entities or bodies set out in the annexes to the abovementioned acts.

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Summaries of judgments: Openbaar Ministerie | BPC Lux 2 and Others

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Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

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Judgment of the Court (Grand Chamber) of 22 February 2022, X and Y v Openbaar Ministerie, Joined Cases C-562/21 PPU and C-563/21 PPU, EU:C:2022:100

Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedures between Member States – Conditions for execution – Charter of Fundamental Rights of the European Union – Second paragraph of Article 47 – Fundamental right to a fair trial before an independent and impartial tribunal previously established by law – Systemic or generalised deficiencies – Two-step examination – Criteria for application – Obligation of the executing judicial authority to determine, specifically and precisely, whether there are substantial grounds for believing that the person in respect of whom a European arrest warrant has been issued, if surrendered, runs a real risk of breach of his or her fundamental right to a fair trial before an independent and impartial tribunal previously established by law

Facts

Two European arrest warrants (‘EAWs’) were issued in April 2021 by Polish courts against two Polish nationals for the purposes, respectively, of executing a custodial sentence and of conducting a criminal prosecution. The persons concerned were in the Netherlands and did not consent to their surrender.

The Rechtbank Amsterdam (District Court, Amsterdam, Netherlands) noted that, since 2017, there have been in Poland systemic or generalised deficiencies affecting the right to a fair trial, and in particular the right to a tribunal previously established by law, resulting, inter alia, from the fact that Polish judges are appointed on application of the Krajowa Rada Sądownictwa (the Polish National Council of the Judiciary; ‘the KRS’). The referring court furthermore noted that, according to the resolution adopted in 2020 by the Sąd Najwyższy (Supreme Court, Poland), the KRS, since the entry into force of a law on judicial reform on 17 January 2018, is no longer an independent body. In so far as the judges appointed on application of the KRS may have participated in the criminal proceedings that led to the conviction of one of the persons concerned or may be called upon to hear the criminal case of the other person concerned, the referring court considered that there was a real risk that those persons, if surrendered, would suffer a breach of their fundamental right to a tribunal previously established by law.

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Can a judge’s request for a preliminary ruling be illegal and lead to disciplinary action? – The Court of Justice conclusions in case C-564/19

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By Joana Gama Gomes (Master in International and European Law from the University of Coimbra / Researcher at CIDEEFF - Centro de Investigação em Direito Europeu, Económico, Financeiro e Fiscal)
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The request for a preliminary ruling was submitted by a Hungarian court in criminal proceedings brought against a Swedish national, for infringement of the provisions of Hungarian law governing the acquisition or transport of firearms or ammunition. Although the facts of this case seem unrelated to the problem at hand, subsequent developments in Hungary during the course of this procedure raised a fundamental issue of EU law.

A declaration of illegality from the Hungarian Supreme Court and disciplinary proceeding against the referring judge led him to ask the Court two crucial questions – whether EU law precludes a national court of last instance from declaring as unlawful a decision by which a lower court makes a request for a preliminary ruling, and whether the principle of judicial independence precludes disciplinary proceedings being brought against a judge for having made such a request for a preliminary ruling.

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Some additional thoughts on metadata retention – points to consider when adopting new legislation [on joined cases C‑793/19 and C‑794/19 (SpaceNet) and the German legislation on this matter]

On By officialblogunioIn Essays1 Comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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As we have highlighted in this blog, in the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.  Law 32/2008 transposed the rules of Directive 2006/24, which were declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. This case-law of the CJEU has recently (again) been confirmed in the G. D. judgment, according to which: Article 15(1) of Directive 2002/58 (Directive on privacy and electronic communications), read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union (“CFREU”), must be interpreted as precluding legislative measures which, as a preventive measure for the purposes of combating serious crime and preventing serious threats to public security, provide for the general and indiscriminate retention of traffic and location data (recital 129).

Fortunately, the idea of amending the Portuguese Constitution to overcome the problem of the generalised and indiscriminate retention of metadata – which is, first and foremost, a matter of EU law – is losing steam. But there have been some voices that, surprisingly, suggest a change of course in the case-law of the CJEU and the Portuguese Constitutional Court. It is worth remembering that, in a State governed by the rule of law and a Union based on the rule of law, judicial decisions against which there is no appeal must be respected – whether one agrees with them or not. This is our most precious constitutional heritage. In fact, one could argue that if we had carefully considered the implications and respected the decision of the CJEU in Digital Rights Ireland when it was originally ruled, we could have avoided this entire issue.

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Editorial of May 2022

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By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
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Metadata retention is first and foremost a matter of EU law: a revision of the Portuguese Constitution will not solve the issue

In the recent judgment 268/2022 of 19 April, the Portuguese Constitutional Court finally declared the unconstitutionality of some provisions of Law 32/2008.[1] Law 32/2008 transposed Directive 2006/24, which was declared invalid eight years ago by the Court of Justice of the European Union (“CJEU”) in the Digital Rights Ireland judgment, for introducing a system of generalised and indiscriminate retention of personal data. Given the resistance of the Portuguese judicial authorities to abide by CJEU case law in this area – or even refer back to the CJEU in order to clarify any remaining interpretative doubt – the result achieved by the Portuguese Constitutional Court was not only necessary but also desirable.

What is the solution when addressing a situation of judicial deadlock such as the one Portugal was experiencing with regard to the generalised and indiscriminate retention of personal data incompatible with EU law? It would be for the Constitutional Court to declare the invalidity of the internal rules incompatible with EU law, due to the violation of the obligations to which Portugal was bound when it joined the EU – in particular, the European loyalty provided for in Article 4(3) TEU, which is reflected in Article 8(4) of the Portuguese Constitution. In this context, it should be noted that the problem was not originally solved by the ordinary courts, but by the independent public administration. Here it is worth highlighting the Deliberation 1008/2017, of the Portuguese Data Protection Supervisory Authority (“CNPD”), which still in 2017 decided to disapply Law 32/2008 in the situations submitted to it for appreciation.

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Editorial of April 2022

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By Alessandra Silveira (Editor)
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Rule of law and the direct effect of the second subparagraph of Article 19(1) TEU (on the case M. F., C-508/19)


Never since the beginning of European integration, was the mission of impartial and independent courts been as important as nowadays, taking into account the war currently being waged. Therefore, it is important to consider that “It is when the cannons roar that we especially need the laws…Every struggle of the state – against terrorism or any other enemy – is conducted according to rules and law”, as stated the Advocate General Poiares Maduro in his Opinion in the case Kadi, quoting Aharon Barak, the former President on the Supreme Court of Israel (C‑402/05 P, ECLI:EU:C:2008:11, recital 45).

Last week the CJUE added a piece to the puzzle of a Union based on the rule of law. And do it from the judicial independence in which the effective judicial protection of individuals’ rights under EU law is rooted. More precisely: on 22 March 2022, in the case M. F. (C-508/19, ECLI:EU:C:2022:201), the CJEU has claimed that the second subparagraph of Article 19(1) TEU (according to which “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”) must be regarded as having direct effect.

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Once again about the priority of the EU law in Romania: “Amédée ou comment s’en débarrasser”

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Dragoș Călin [Judge at the Bucharest Court of Appeal, Co-President of the Romanian Judges' Forum Association, Director of the Judges' Forum Review (Revista Forumul Judecătorilor)].
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1. Introduction

In “Amédée, or How to Get Rid of It (Amédée ou comment s’en débarrasser)”, written by Eugène Ionesco (“Théâtre, Volume I”, Paris, Gallimard, 1954), Amédée and his wife Madeleine discuss how to deal with a continually growing corpse in the other room. That corpse is causing mushrooms to sprout all over the apartment and is apparently arousing suspicion among the neighbours. The audience is given no clear reason why the corpse is there.

Like Amédée and Madeleine, in the “priority of the EU law in Romania” saga, we are simply in a play in which nothing changes, but everything transforms.

Under pressure from the Constitutional Court’s decisions, ordinary judges refuse to apply CJEU judgments, and the example is provided by the High Court of Cassation and Justice and Craiova Court of Appeal.

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The national judge as judge of the Union (a view of the Judges’ Forum 2021 – CJEU)

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Irene das Neves (Appeal Court Judge of the Northern Administrative Central Court - Tax Litigation Section), Dora Lucas Neto (Appeal Court Judge of the Southern Administrative Central Court - Administrative Litigation Section), and Isabel Silva (Judge of the Administrative and Fiscal Court of Braga - Tax Litigation)
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The reference for a preliminary ruling, provided for in Article 19(3)(b) of the Treaty on European Union (TEU) and Article 267 of the Treaty on the Functioning of the European Union (TFEU), is a fundamental mechanism of EU law.[1] It is an “incident” within national proceedings that obliges the national judge to stay the proceedings because it is faced with the need to obtain a “preliminary” ruling from the Court of Justice of the European Union (CJEU) on the interpretation of EU law or the validity of the acts of its bodies, institutions or agencies, with a view to the proper administration of justice within the EU. To that extent, the national courts playing the role of guardians of EU law, ensuring the effective and homogenous application of the law, and seeking to avoid divergent interpretations by the various courts of the Member States.

It was on this theme of the reference, focused on the reference for the interpretation of EU law, that the President of the CJEU, Koen Lenaerts, opened the 2021 Judges’ Forum, which was held at the CJEU from 21 to 23 November and brought together judges from the courts of first instance and the appeal courts of the Member States, recalling that the reference for a preliminary ruling is an instrument of judicial cooperation by means of which the national judge and the EU judge are called upon, within the scope of their respective powers, to contribute to a decision ensuring the uniform application of EU law by the Member States.

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