European Union and Turkey: judicial independence at a crossroads

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by José Igreja Matos, President of the European Association of Judges

“In the little world in which children have their existence”, says Pip in Charles Dickens’s Great Expectations, “there is nothing so finely perceived and finely felt, as injustice.” (…) But the strong perception of manifest injustice applies to adult human beings as well. What moves us, reasonably enough is not the realization that the world falls short of being completely just – which few of us expect – but that there are clearly remediable injustices around us which we want to eliminate.” – Amartya Sen, “The idea of Justice” (preface).

As V. Skouris [former President of the Court of Justice of the European Union (CJEU)] brilliantly explained in his speech at the conference Assises de la Justice (November 21, 2013), when analysing matters related to judicial independence, there is a traditional distinction between personal independence and substantive or functional independence. The former essentially refers to the personal qualities of the judge and is destined to ensure that in the discharge of his or her judicial function, a judge is subject to nothing but the law and the command of his or her conscience. The latter of this is the functional independence which refers also to the judicial institution as a whole; it means that the terms and conditions of judicial service are adequately secured by law so as to ensure that individual judges are not subject to any executive control. Judicial independence within the European Union legal order concerns not only the CJEU but also national courts at all levels, since national judges are also what we call in French “juges de l’Union du droit commun“.

Unfortunately, the situation in Turkey is characterized by an affront towards basic standards of judicial independence. Turkey was one of the first countries, in 1959, to seek close cooperation with the then very recent European Economic Community. This cooperation was realised in the framework of an “Association Agreement”, known as the Ankara Agreement, which was signed on September 12, 1963. The CJUE was already called to focus precisely on this Association Agreement for instance in relation to the issue of their limits (Judgement Dereci and others v Bundesministerium für Inneres, Case C-256/11, EU: C:2011:734). This associative status implies that European Union naturally concerns about matters involving Turkey, and what happens with the Turkish citizens concerns the EU citizens. However, the idea “a judge is subject to nothing but the law and the command of his or her conscience” – to use the language of V. Skouris – is today completely marginalized in Turkey as pointed out by different European entities. Some concrete examples can be provided in this regard:

I) In December 8, 2016 the European Network of Councils of Judiciary (ENCJ) decided, in General Assembly, to suspend, with no Council voting against, the observer status of the Turkish Judicial Council (HSYK). Thus the HSYK is now excluded from participation in ENCJ activities. The reasoning of the ENCJ was impressive: “it is a condition of membership, and for the status of observer, that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice. (…) taking into account the failure of the HSYK to satisfy the ENCJ that its standards have been complied with, the statements of the HSYK, as well as information from other sources including the reports and statements of the European Parliament, the European Commission, the Human Rights Commissioner of the Council of Europe and Human Rights Watch and the Venice Commission, the ENCJ decided that the actions and decisions of the HSYK, and therefore the HSYK as an institution cannot be seen to be in compliance with European Standards for Councils for the Judiciary. Therefore, the HSYK does not currently comply with the ENCJ Statutes and is no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice.” Security of tenure of office is a core element of the independence of a judge and the dismissal of judges should be used only in case of misuse of the exercise of office (e.g. UN Basic principles on the Independence of Judiciary, Opinion para 95, 92, 63, Rec para 49 and 50). However, HSYK adopted a decision with only 62 pages of reasoning sufficient to dismiss thousands of judges. The decision is totally inadequate when the criminal investigations used as motive to sack those judges are still in a pre-trial stage; the principle of the presumption of innocence, which is enshrined in Article 5 of the European Convention for Human Rights (ECHR), was consequently completely ignored, if not violated.

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Summary of Internationale Handelsgesellschaft – 11/70

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Deposit, Export licence, force majeure

Court: CJEU| DateDecember 12nd 1970 | Case: 11/70 | Applicants: Internationale Handelsgesellschaft mbH vs Einfuhr- und Vorratsstelle für Getreide und Futtermittel

Summary:  Internationale Handelsgesellschaft is an import-export undertaking. The company obtained 20 000 metric tons of maize meal with validity until 31st December 1967. According to article 12 of Regulation No 120/67 in what concerns to market of cereals. When the licence expired and the company delivered approximately 11 000 metric tons of cereal. After, Einfuhrund Vorratsstelle für Getreide und Futtermittel declared the deposit forfeited according to Regulation No 473/67/EEC. The undertaking brought an action to court against this decision. The Court suspended the action and sent to CJEU the following questions:

Are the obligation to export, laid down in the third subparagraph of Article 12 (1) of Regulation No 120/67/EEC of the Council of 13 June 1967, the lodging of a deposit, upon which such obligation is made conditional, and forfeiture of the deposit, where exportation is not effected during the period of validity of the export licence, legal? Continue reading “Summary of Internationale Handelsgesellschaft – 11/70”

Summary of Tetra Pak – T-51/89

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Common Market, Abuse, Dominant Position, European Commission, Exemption.

Court: CJEU, General Court | DateJune 10th 1990 | Case: T-51/89 | Applicants: Tetra Pak Raussing S.A. vs European Commission

Summary: On 26th July 1988, European Commission declared that Tetra Pak Raussing S.A. was in breach of article 86 of the EEC Treaty because by purchasing LiquiPak, they would have access to LiquiPak’s exclusivity contract of patent. This exclusive licence relates to a new UHT milk-packaging process. On 26th June 1986, EloPak made a complaint to the European Commission contesting TetraPak act according to articles 85 and 86 of the EEC Treaty. European Commission concluded that TetraPak infringed article 86 of the EEC Treaty by abusing its dominant position. TetraPak contested the decision and appealed to First Instance Court based on the argument that European Commission couldn’t disallow the deal based on article 86 when this deal is an exemption to n.3 of article 85 of the EEC Treaty. This argument is separated in three sub-categories:

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Summary of Brasserie du Pêcheur & Factortame – C-46/93 and C-48/93

 

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: liability of the state; legislator; claims; repair; individual’s rights

Court: CJEU | DateMarch 5th 1996 | Cases: C46/93 and C-48/93 | Applicants: Brasserie du Pêcheur vs Federal Republic of Germany

Summary: This judgment contains two similar cases connected to the same matter: liability of the State.

In the first case, the French company Brasserie du Pêcheur was obliged to cease their exportations from Germany due to German authorithies’ allegations that the beer did not fulfill purity requirement. European Comission interfered in this case and stated that this provisions were contrary to article 30 of EEC Treaty and brought an infringement proceedings against German Federal Republic. On 12th March 1987, the court confirmed EC’s arguments and consequently condemned the German act. Therefore, Brasserie du Pêcheur moves another action to reclaim their losses. The Court had doubts related to the limits of liability of the State and internal law and so they decided to send a question to the CJEU.

In the second case, Factortame intented an action in High Court of Justice with the purpose to challenge the compatibility of Part II of the Merchant Shipping Act with article 52 of the EEC Treaty. This law predicted a new register for British fishing boats and it pretended to obligate vessel’s registration, including those already registered, according to some conditions relating to nationality. The boats that couldn’t be registered were forbidden to fish. In another previous judgement, CJEU considered that this law was contrary to Communitary law, but it was not contrary that all the boats in UK suffered more controled by the authorities. On 4th August 1989, European Comission brought infringement proceedings against UK to suspend nationality requests because they were contrary to articles 7, 52 and 221 of the EEC Treaty. Afterwards, the Court decided to call the intervenients to show the amount of claims, however the Court had doubts in what refers to include a claim for inconstitutional behaviour and send a question to CJEU.

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Summary of Costa/ENEL – 6/64

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: primacy; competition rules; non-discrimination; nationalisation; state aid.

Court: CJEU | DateJuly 15th 1964 | Case: 6/64 | Applicants: Faminio Costa vs Ente Nazionale Energica Elettrica

Summary: The Italian Republic nationalized the production and distribution of electric energy. In the middle of the proceedings, Mr Costa, shareholder of an energy company affected by the sector nationalization requested the application of article 177 of EEC Treaty to obtain the interpretation of articles 102, 93, 53 and 37 of the same treaty. To Mr Costa, this nationalization infringed the articles mentioned above. The Giudice Consiliatore decided to send a question to CJEU:

“Having regard to Article 177 of the Treaty of25 March 1957 establishing the EEC, incorporated into Italian law by Law No 1203 of 14 October 1957, and having regard to the allegation that Law No 1643 of6 December 1962 and the presidential decrees issued in execution of that Law (No 1670 of 15 December 1962, No 36 of 4 February 1963, No 138 of25 February 1963 and No 219 of 14 March 1963) infringe Articles 102, 93, 53 and 37 of the aforementioned Treaty, the Court hereby stays the proceedings and orders that a certified copy of the file be transmitted to the Court of Justice of the European Economic Community in Luxembourg.’”

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Summary of Simmenthal – 106/77

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: EU law application; national law; legal orders; uniformity; free movement of goods.

Court: CJEU | DateMarch 9th 1978 | Case: 106/77 | Applicants: Simmenthal S.p.A. vs Amministrazione Delle Finanze pello Stato

Summary: On 26th July 1973 Simmenthal imported beef for human consumption from France and they had to pay its respective fee importation for public health inspection. About this matter, it was Simmenthal’s opinion that this inspection clearly violated the fundamental principles of Common Market (in this case, free movement of goods). So, Simental brought an action to court with the intention to be repaid for the mentioned illegal (for their point of view) fee. The Court, Pretore di Suza accepted Simmenthal arguments and condemned Administrazione delle Finanze pello Stato (therefore, administrazione) to repay the company. Not satisfied with the decision, Admnistrazione appealed against the order to repay arguing with some rulings by the constitutional jurisdiction regarding the conflict between Community law and National law. The Court suspended and referred a question to CJEU:

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Summary of Francovich – 6/90

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: social policy; liability; directive implementation; failure to fulfil an obligation; compensation.

Court: CJEU | DateNov. 19th 1991 | Case: 6/90 | Applicants: Andrea Francovich vs Italian Republic

Summary: The Directive 80/897 goal was to assure a minimum protection for all European workers in case of bankruptcy of a company. For this purpose, it predicted specific guarantees for the payment of claims relating to debt remuneration. Italian Government didn’t implement the mentioned policy in time. Mr Francovich and Mrs Bonifaci filed in court arguing that it was the Italian Government’s obligation to implement the Directive 80/897 and so they claimed a state compensation. The national court suspended the case and referred the following questions to CJEU:

“Under the system of Community law in force, is a private individual who has been adversely affected by the failure of a Member State to implement Directive 80/897 — a failure confirmed by a judgment of the Court of Justice — entitled to require the State itself to give effect to those provisions of that directive which are sufficiently precise and unconditional, by directly invoking the Community legislation against the Member State in default so as to obtain the guarantees which that State itself should have provided and in any event to claim reparation of the loss and damage sustained in relation to provisions to which that right does not apply?”

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Summary of CILFIT – 283/81

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Common Market; Court of Justice; Question; Article 177; Member States.

Court: CJEU | DateOct. 6th 1982Case: 283/81 | Applicants: Srl CILFT vs Italian Minister of Health.

Summary: Since the adoption of the Italian Law nº 30 of January’68, textile firms had paid by way of fixed health inspection levy a certain amount of wool, until the application of law nº1239 of December’70. The last mentioned law amended the levy, but textile firms had been required to pay a sum of the levy. Tribunal di Roma dismissed the plaintiffs’ appeal in October’76. They argued that Law nº 1968 was inapplicable because Regulation (EEC) nº 827/68 was adopted. Court of Appeal had also given reason to Ministry of Health. In October ’79, Ministry of Health lodged the judgement of Court of Appeal and added that wool was not included in Annex II of EEC Treaty, so it’s the states’ competence to rule on the matter, and they said that it wasn’t necessary to send any question to CJEU because the case was very clear. According to MoH’s arguments the Court of Appeal found a relevant question to send to the CJEU involving article 177 of the Treaty:

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Summary of Van Gend en Loos – Case 26/62

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: direct effect; tax; legal order; common market; particular

Court: CJEU | Date: Feb. 5th 1963 | Case: 26/62 | Applicants: Van Gend en Loos v. Netherlands Inland Revenue Administration

Summary: The transport company Van Gend en Loos imported a certain quantity of urea-methanal, which belonged to a specific category in the tariff of import duties list (implies 10% tax). After that, the transport company introduced an objection against the application of this duty, with the argument that the urea-methanal was in another category duties (only implies 3% tax) when the EEC treaty entered in force in 1958. Therefore, the Dutch Government infringed the 12 article of EEC Treaty, which provides Member States to change or introduced any new customs duties.

Thus, the Inspector of Customs and Excise at Zaandam dismissed the objection of Van Gend because it was “not directed against the actual application of the tariff but against the rate”. Furthermore, Nederlandes administratie der belastingen stated that when the EEC Treaty entered into force, this product was incorporated in another category, which had the same tax (10%) as the new category, so it wasn’t raised any rate. The national court suspended the proceedings and referred two questions to the CJEU about this matter:

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