Tag: CJEU

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

On By officialblogunioIn Summaries of judgmentsLeave a comment 
Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

 ▪

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.

Continue reading “Summaries of judgments: Minister for Ecological Transition and Prime Minister | Puig Gordi e o” →

The system of investigation of offences committed by judges and prosecutors in Romania, once again under the attention of the CJEU

On By revistaunioIn Essays1 Comment 
Dragoș Călin (Judge at the Bucharest Court of Appeal and Co-President of the Romanian Judges' Forum Association)
▪

By the decision issued on 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the second of which concerns the compatibility of the new system of investigation of offences committed by judges and prosecutors, as a result of the dismantling of the famous Special Section (SIOJ), criticized by all relevant international bodies and regarding which the Court of Justice of the European Union (CJEU) itself expressed serious doubts related to the compatibility with the European Union law.

Thus, by the judgment issued in the joined cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociația Forumul Judecătorilor din România and Others, the Grand Chamber of the Court of Justice of the European Union established that Article 2 and the second subparagraph of Article 19(1) of the TEU, as well as the Commission Decision 2006/928 of 13 December 2006 establishing a Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption (CVM) must be interpreted as precluding national regulation that provides for the establishment in the Public Ministry of a specialized section that has exclusive competence to investigate the offences committed by judges and prosecutors without the establishment of such section being justified by objective and verifiable requirements related to the sound administration of justice and without being accompanied by specific guarantees that allow, on the one hand, to remove any risk that this section may be used as an instrument of political control over the activity of those judges and prosecutors likely to affect their independence and, on the other hand, to ensure that such competence can be used in relation to the latter in full compliance with the requirements resulting from Articles 47 and 48 of the Charter of Fundamental Rights of the European Union.

Continue reading “The system of investigation of offences committed by judges and prosecutors in Romania, once again under the attention of the CJEU” →

The role of associations of judges in defending the rule of law: legitimacy of unconditional locus standi in situations where they seek to obtain effective jurisdictional protection in areas regulated by European Union law

On By officialblogunioIn EssaysLeave a comment 
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)].
▪

On 24 November 2022, the Pitești Court of Appeal referred two preliminary questions to the Court of Justice of the European Union, the first of which concerns the legitimacy of locus standi and the procedural interest of professional associations of judges in order to promote and defend the independence of judges and the rule of law, as well as to safeguard the status of the profession, in situations where associations seek to obtain effective jurisdictional protection in areas regulated by Union law.

The litigation initiated by the Romanian Judges’ Forum Association respectively by the Movement for Defending the Status of Prosecutors Association, two of the most important associations of Romanian judges and prosecutors, seeks the annulment of administrative acts regarding the appointment within the Prosecutor’s Office attached to the High Court of Cassation and Justice of prosecutors who will conduct criminal investigations in corruption cases regarding judges and prosecutors, given that, in Romania, the competence of the National Anticorruption Directorate in this field has been completely removed.

Continue reading “The role of associations of judges in defending the rule of law: legitimacy of unconditional locus standi in situations where they seek to obtain effective jurisdictional protection in areas regulated by European Union law” →

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

On By officialblogunioIn Summaries of judgmentsLeave a comment 
Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

 ▪

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.

Continue reading “Summaries of judgments: Staatssecretaris van Justitie en Veiligheid | Senatsverwaltung für Inneres und Sport” →

A new strategy for EU law enforcement

On By officialblogunioIn CommentsLeave a comment 
By Pedro Pereira (Master’s student in European Union Law at the School of Law of the University of Minho)
▪

The European Commission is regarded as the “Guardian of the Treaties” in the Treaty on the European Union (TEU), and according to its most recent Communication last October 13, it plans to ensure its own role with both a helping hand and watchful eye, all while honouring democratic transparency and (especially) EU law.

The Communication “Enforcing EU law for a Europe that delivers”[1] draws on the fact that the EU is an established community of both law and values. It reminds us that the EU’s best asset is its ability to create a homogenous background for its citizens and businesses alike. EU law lays the foundation and groundwork for a well-functioning internal market, for a more digital and greener Europe, ensures and promotes European values, provides for effective judicial cooperation, security and ultimately succeeds in showing the world the bastion of justice, democracy, and respect for fundamental rights. And bearing the responsibility as the Guardian of the Treaties and EU law, in its own words: “The Commission is committed to stepping up its work to promote and uphold people’s rights, fundamental freedoms and the rule of law.”

Continue reading “A new strategy for EU law enforcement“ →

“Brexit means Brexit” for the EU citizenship rights of British nationals – The Court of Justice conclusions in Préfet du Gers

On By officialblogunioIn Case notes1 Comment 
By Joana Gama Gomes (Assistant Professor of European and International Law, University of Lisbon School of Law)
▪

The United Kingdom (UK) officially withdrew from the European Union (EU) on February 1st, 2020, the date in which the Withdrawal Agreement (WA)[1] entered into force. As a result, and after the end of the transition period, all EU law stopped being applicable to and in the United Kingdom, including the provisions of EU law regarding the rights attached to EU citizenship.

EU citizenship is established in Article 9 TEU, which prescribes that “Every national of a Member State shall be a citizen of the Union”. In particular, in accordance with Articles 20 (2) (b) and 22 (1) TFEU, EU citizenship grants its citizens the right to vote and to stand as a candidate in municipal elections in the Member State of residence, under the same conditions as nationals of that State.

Continue reading ““Brexit means Brexit” for the EU citizenship rights of British nationals – The Court of Justice conclusions in Préfet du Gers” →

Again: on the prohibition of generalised and indiscriminate retention of metadata for the purpose of combating serious crime

On By officialblogunioIn Case notesLeave a comment 
By Alessandra Silveira (Editor) and Tiago Sérgio Cabral (Managing Editor)
▪

The CJEU has recently added further pieces to the puzzle of retention of traffic and location data by providers of electronic communications services for the purpose of making them available to competent national authorities in the fight against serious crime.[1] In addition to reiterating its constant jurisprudence on the matter, this CJEU judgment is particularly valuable to Member States that are legislating in order to adapt to EU law – as is the case of Portugal (judgment of 20 September 2022, SpaceNet, joined cases C-793/19 and C‑794/19, ECLI:EU:C:2022:702).[2]

In several Recitals of the judgment, the CJEU left some clues as to its resistance to the generalised and indiscriminate retention of metadata, and it is possible to perceive that it lies in the uncontrolled profiling of users of electronic communications services. Profiling is often used to make such predictions about individuals. It involves the collection of information about a person and the assessment of their characteristics or behavioural patterns in order to place them in a certain category or group and drawing upon that an inference or prediction – be it of their ability to perform a task, of their interest or presumed behaviour.[3]

Continue reading “Again: on the prohibition of generalised and indiscriminate retention of metadata for the purpose of combating serious crime” →

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

On By revistaunioIn Summaries of judgmentsLeave a comment 
Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)

 ▪

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.

Continue reading “Summaries of judgments: Openbaar Ministerie | BPC Lux 2 and Others” →

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

On By revistaunioIn Case notesLeave a comment 
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)
▪

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.

Continue reading “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” →

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)
▪

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.

Continue reading “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]” →