Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development

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

1. Stating the obvious

The reference for a preliminary ruling, provided for Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union is an essential instrument for the European Union and, in particular, for national judges.

It is aimed to guarantee the uniform interpretation and application of EU law by offering to the courts and tribunals of Member States a procedure to acquire from the Court of Justice of the European Union a preliminary ruling concerning the interpretation of EU law or the validity of acts adopted by the institutions of the Union.

As easily predictable, the impact of a preliminary ruling procedure in EU legal system is immense also because the rulings of European Court of Justice (ECJ) are assumed as generally binding.

The ECJ itself does not have a power to enforce the accurate application of EU law; this is the reason why national courts or tribunals are obliged to bring the matters in question before the Court as frontrunners of the application of EU law.

The reference for a preliminary ruling is the only way for the national judges to directly convey with ECJ. This procedure helps the ECJ control on how the national courts apply EU law providing the uniformity and certainty essentials to the success of our Union.

Another aspect of major significance could be furthermore underlined: the preliminary ruling also ensures the protection of the rights of individuals. EU laws, in particular the criminal law, fall to be interpreted in accordance with the Charter of Fundamental Rights. The Article 6(1) of the Treaty of European Union affirms: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties”. In general terms, the Charter applies to Member States when they implement Union law (Case C-292/97 Karlsson and Others); therefore, the interpretation of the Charter provisions tends to be, if not now, in the foreseeable future, a fertile ground for the use of the preliminary ruling procedures.

The Member States are bound to respect fundamental rights in judicial cooperation, for instance, if a Member State is extraditing someone to another Member State in accordance with the scheme established by the European Arrest Warrant Framework Decision.
Continue reading “Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development”

The Almaraz debate – it’s not in Spain, it’s not in Portugal, it’s all around…

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by Sophie Perez Fernandes, Junior Editor

The risk society is a non-knowledge society. Ulrich Beck has long demonstrated that the explosion of the nuclear reactor at Chernobyl (26 April 1986) coincided with an «explosion of non-knowledge» in an entanglement that requires a rethinking of the conceptual and institutional constants of the modern world, such as the concepts of rights and human dignity, as well as those of sovereignty and state government[i].

On January 16, the Portuguese government filed a complaint to the European Commission against Spain concerning the construction of a nuclear waste storage facility at the Almaraz nuclear power plant (the news can be found here). Operating since the early 1980s, the Almaraz nuclear power plant is located along the Tagus River about 100 kilometres from Portugal, bordering the districts of Castelo Branco and Portalegre. The construction of the storage facility is intended to extend the operation of the Almaraz nuclear power plant, which has been presenting several problems, especially security problems. Portugal claims that there has been a violation of the EIA Directive, in addition to requesting the suspension of the construction of the Almaraz nuclear waste storage facility.

The EIA Directive – Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 – applies to the assessment of environmental effects of certain public and private projects which are likely to have significant effects on the environment. It updates 4 earlier directives (Directives 85/337/EEC, 97/11/EC, 2003/35/EC and 2009/31/EC) and applies from 17 February 2012. Furthermore, Directive 2011/92 has been amended in 2014 by the Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014. The revised EIA Directive entered into force on 15 May 2014 and Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with it by 16 May 2017. It should also be mentioned that safety of nuclear installations is also regulated by EU law, namely by the Council Directive 2009/71/Euratom of 25 June 2009 establishing a Community framework for the nuclear safety of nuclear installations (transposition deadline expired since 22 July 2011), amended by the Council Directive 2014/87/Euratom of 8 July 2014 (transposition deadline expires the 15 August 2017).

As stated above, Portugal claims that there has been a violation of the EIA Directive. The EIA procedure laid down in this directive can be summarized as follows: i) the developer (the applicant for authorisation for a private or public project which falls within the scope of application of the EIA Directive) may request the competent authority to say what should be covered by the EIA information to be provided (scoping stage); ii) the developer must provide information on the environmental impact (EIA report); iii) the environmental authorities and the public (and, as will be explained below, the eventually affected Member States) must be informed and consulted; iv) the competent authority decides, taken into consideration the results of consultations. The public is then informed of the decision taken and can challenge it before the courts.

Continue reading “The Almaraz debate – it’s not in Spain, it’s not in Portugal, it’s all around…”

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?”

Continue reading “Summary of Francovich – 6/90”