Rainbow families: pioneering ruling on legal recognition to same sex parentage across all EU Member States

By Kosha Doshi and Naga Sumalika Rangisetti (3rd year students at Symbiosis Law School - India)

1. Introduction

Europe in general and the European Union (EU) in particular, have seen a remarkable surge in the prevalence of countries that provide legal recognition to informally cohabiting (same-sex) partners, as well as the number of countries that allow same-sex couples to marry or at least enter into a form of registered partnership. However, even in some countries where same-sex marriage is accepted, same-sex parentage is questioned. Pride month is celebrated every year in June and, within this context, it is important to remember that the rights of bisexuals, trans and LGBTQI+ parents have not been treated on par as heterosexual parents’ families. This is a complex and delicate subject that touches on human rights, religion, morality, and tradition, as well as constitutional concepts like equality, autonomy, and human dignity.

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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

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.

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Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism

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)]. 

Very recently, on March 10, 2022, the Alba Iulia Court of Appeal – Administrative and Fiscal Litigation Section ordered the referral to the Court of Justice of the European Union, based on art. 267 of the Treaty on the Functioning of the European Union, with a new preliminary ruling in close connection with the Rule of law (Case C-205/22, C.D.A.).

In fact, the Romanian court’s request tends to ascertain mainly whether, in the interpretation of the CJEU, the principle of judicial independence enshrined in the second subparagraph of Article 19(1) TEU with reference to Article 2 TEU and Article 47 of the Charter of Fundamental Rights of the European Union and the principle of sincere cooperation, laid down in Article 4 TEU, preclude a national provision, such as that of Article 148(2) of the Romanian Constitution, as interpreted by the Romanian Constitutional Court, by Decision No 390/2021, according to which national courts cannot take account of the provisions of European Commission Decision 2006/928 and the recommendations made in the CVM Reports for the implementation of the benchmarks, on the ground that “national courts are not empowered to cooperate with a political institution of the European Union.”

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Summaries of judgments: Euro Box Promotion | Wiener Landesregierung and Others (Revocation of an assurance of naturalisation)

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 21 December 2021, Joined cases C‑357/19, C‑379/19, C‑547/19, C‑811/19 and C‑840/19, Euro Box Promotion e.a., EU:C:2021:1034

Reference for a preliminary ruling – Decision 2006/928/EC – Mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption – Legal nature and effects – Binding on Romania – Rule of law – Judicial independence – Second subparagraph of Article 19(1) TEU – Article 47 of the Charter of Fundamental Rights of the European Union – Fight against corruption – Protection of the European Union’s financial interests – Article 325(1) TFEU – ‘PFI’ Convention – Criminal proceedings – Decisions of the Curtea Constituțională (Constitutional Court, Romania) concerning the legality of the taking of certain evidence and the composition of judicial panels in cases of serious corruption – Duty on national courts to give full effect to the decisions of the Curtea Constituțională (Constitutional Court) – Disciplinary liability of judges in case of non-compliance with such decisions – Power to disapply decisions of the Curtea Constituțională (Constitutional Court) that conflict with EU law – Principle of primacy of EU law 

Facts

The disputes in the main proceedings follow on from a wide-ranging reform in the field of justice and the fight against corruption in Romania, a reform which is at the origin of the judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others (C‑83/19, C‑127/19, C‑195/19, C‑291/19, C‑355/19 and C‑397/19, EU:C:2021:393) and has been monitored at EU level since 2007 under the cooperation and verification mechanism (‘the CVM’) established by Decision 2006/928.[1]

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Did the court of last resort apply the CJEU preliminary ruling correctly? In case of EU law breach, what to do in the absence of domestic remedy? – A first appraisal of the pending case F. Hoffmann-La Roche and Others

Cinzia Peraro  (Senior Researcher of European Union Law, University of Bergamo - Italy)
 

I. Background

The Italian administrative judge of last resort (Consiglio di Stato) submitted on 21 April 2021[1] a request for a preliminary ruling in the case F. Hoffmann-La Roche Ltd and Others v Autorità Garante della Concorrenza e del Mercato (C-261/21).

This case falls within the long-running Avastin-Lucentis affair that concerns an agreement restricting competition concluded in breach of Article 101 TFEU between certain companies operating in the pharmaceutical sector. The Italian Antitrust Authority prohibited the continuation of the contested conduct and imposed administrative fines. The companies appealed against this measure before the administrative judge, who rejected them. Within the proceedings at second instance, the Council of State referred a number of preliminary questions of interpretation to the Court of Justice. After the preliminary ruling delivered on 23 January 2018 (C-179/16), the Italian administrative judge dismissed the appeals, thus upholding the decision at first instance and, accordingly, the contested measure. However, the parties asked the Council of State to revoke its appeal judgment, alleging, inter alia, a manifest breach of the principles of law affirmed by the Court of Justice in the previous preliminary ruling and asking to make a new referral to Luxembourg. The administrative judge thus suspended the proceedings and, for a second time, referred to the Court of Justice other three questions.

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Editorial of April 2022

By Alessandra Silveira (Editor)

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”

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)]. 
 

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 relevance of judicial institutions in upholding the Rule of Law

Gonçalo Martins de Matos (Master’s student in Judiciary Law at University of Minho) 

Between the 15th and the 16th of February 2022, two landmark decisions were issued by two distinct courts: one regarding EU law, by the Court of Justice of the European Union (CJEU), and the other regarding Portuguese law, by the Portuguese Constitutional Court. We shall look at both of them and analyse what they introduce (or establish) regarding the defence of the Rule of Law.

We shall start with the CJEU’s decision. On 16 February 2022, the CJEU rendered its judgment in Cases C-156/21 Hungary v. Parliament and Council and C-157/21 Poland v. Parliament and Council. Both Cases emerged from two actions for annulment brought by the Republic of Poland and Hungary concerning Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget[1]. This Regulation adopted several provisions linking access to EU funding and the respect for the Rule of Law, with a view to “protect the EU budget from financial risks linked to generalised deficiencies as regards the rule of law in the Member States[2].

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