The Constitutional Court of Belgium has requested a preliminary ruling from the Court of Justice of the EU (CJEU) about exceptions to reporting tax arrangements under the EU Council’s Directive 2018/822 (DAC6).

On February 19, 2021, The Belgium high court, Grondwettelijk Hof, filed a request for an opinion from the CJEU (case C-694/20) regarding a DAC6 issue that the Flemish Bar Council and Belgian Association of Tax Lawyers raised on December 21 2020. The legal organisations are seeking to suspend reporting certain tax arrangements under the EU Directive because it would impede on the legal rights of “intermediaries” under the Rules of Procedure of the Court of Justice.

Subject of the action in the main proceedings

The action in the main proceedings concerns claims for the suspension and annulment, in whole or in part, of the Flemish decreet van 26 juni 2020 tot wijziging van het decreet van 21 juni 2013 betreffende de administratieve samenwerking op het gebied van de belastingen, wat betreft de verplichte automatische uitwisseling van inlichtingen op belastinggebied met betrekking tot meldingsplichtige grensoverschrijdende constructies (Decree of 26 June 2020 amending the Decree of 21 June 2013 on administrative cooperation in the field of taxation as regards the mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements; ‘the Decree of 26 June 2020’). Those claims were brought by the Orde van Vlaamse Balies (Flemish Bar Council), the de facto association, ‘Belgian Association of Tax Lawyers’ and others.

The question referred

Does Article 1(2) of Council Directive (EU) 2018/822 1 of 25 May 2018 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements infringe the right to a fair trial as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union and the right to respect for private life as guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union, in that the new Article 8ab(5) which it inserted in Council Directive 2011/16/EU 2 of 15 February 2011 on administrative cooperation in the field of taxation and repealing Directive 77/799/EEC, provides that, where a Member State takes the necessary measures to give intermediaries the right to waiver from filing information on a reportable cross-border arrangement where the reporting obligation would breach the legal professional privilege under the national law of that Member State, that Member State is obliged to require the intermediaries to notify, without delay, any other intermediary or, if there is no such intermediary, the relevant taxpayer, of their reporting obligations, in so far as the effect of that obligation is to oblige a lawyer acting as an intermediary to share with another intermediary, not being his client, information which he obtains in the course of the essential activities of his profession, namely, representing or defending clients in legal proceedings and giving legal advice, even in the absence of pending legal proceedings?

Information as to the ‘function’ of a cosmetic product which must appear on the product’s container and its packaging must inform consumers clearly as to that product’s purpose and method of use.

Information concerning the particular precautions to be observed when using that product, its function and its ingredients may not appear in a company catalogue referred to by the symbol of a hand with an open book placed on the packaging or the container.

In 2016 A.M., who, inter alia, owns a beauty salon in Poland, purchased creams, facial masks and powders from a manufacturer based in the United States via E.M., distributor of those products. The packaging of those products bore the name of the responsible entity, the original name of the cosmetic product, its composition, expiry date and serial number as well as the following symbol, representing a hand with an open book, referring to a catalogue containing all the information in Polish.

A.M. terminated the contract for the sale of those products, claiming that there was no Polish language information on the packaging regarding the product’s function, which made it impossible to identify what the product was and what its effects were, and that that information was not clear from the presentation. She also claimed that the information in Polish, required under Polish law and arising from EU law, appeared only in the catalogue, which is not enclosed with or attached to the product.

Since her action seeking reimbursement of the costs of purchasing those products was dismissed, A.M. brought an appeal before the Sąd Okręgowy w Warszawie XXIII Wydział Gospodarczy Odwoławczy (Regional Court, Warsaw, Commercial Appeals Division No 23, Poland). That court asked the Court of Justice to interpret the EU regulation on cosmetic products (1).

By today’s judgment, the Court recalls, first of all, that that regulation seeks to harmonise comprehensively the rules in the European Union in order to achieve an internal market for cosmetic products while ensuring a high level of protection of human health.

It points out in that regard that there is a close connection between, on the one hand, the safety of cosmetic products placed on the market and, on the other hand, the requirements concerning how they are presented and labelled. It follows that the requirement to provide information in indelible, easily legible and visible lettering on the container and on the packaging of cosmetic products concerning the function of the cosmetic product (2) cannot be confined to a requirement to provide information on the purposes of the product’s use, namely to clean, to perfume, to change the appearance, to protect or to keep a part of the body in good condition or to correct body odours. Whilst those purposes make it possible to assess whether a particular product, depending on its use and its purpose, may be categorised as a cosmetic product and therefore, may be distinguished from other products falling outside the scope of the regulation, the ‘function of the cosmetic product’ concerns information relating to characteristics more specific to the product.

The Court concludes that the information as to the ‘function of a cosmetic product’ which must appear on such a product’s container and packaging must be such as to inform consumers clearly as to the product’s purpose and method of use, in order to ensure that consumers can use that product safely, without negatively affecting their health. It is for the national courts, in the light of the characteristics and properties of the product concerned as well as the expectations of the average consumer, who is reasonably well informed and reasonably observant and circumspect, to review the nature and extent of the information which must appear in that regard on the product’s packaging and container so that it can be used without risk to human health.

Next, the Court considers whether the information concerning particular precautions for use of a cosmetic product, its function and its ingredients may appear in a company catalogue which also includes other products, where the symbol of a hand with an open book is placed on the cosmetic product’s packaging or container.

It finds that, when a reference must be provided, only an ‘enclosed or attached leaflet, label, tape, tag or card’ may be used as supporting documentation for the cosmetic product. A company catalogue which is provided separately and contains a description of one or more cosmetic products at issue, but also describes other products from the manufacturer’s range, is not enclosed or attached to a specific product. In addition, supporting documentation may be used only where it is impossible ‘for practical reasons’ to place that information on the label. Such impossibility refers to situations where it is impossible in practice, on account of the nature and the actual presentation of the product, to place certain information on the label.

In that regard, the fact that the cosmetic products concerned have been imported – which, in view of the requirement to place on the label the required information in the language determined by the law of the Member States in which the product is made available to end users, may give rise to organisational and financial issues stemming from the need to translate certain information and to relabel or even repackage the products – does not in itself establish that it is impossible in practice to place that information on the label. The cost of labelling those products in a different language in order to market them in other Member States cannot in any case be regarded as justifying incomplete labelling of the product on its container and its packaging. The Court finds that such a requirement ensures a high level of protection for consumers. Protection of health cannot in fact be fully guaranteed if consumers are not in a position to familiarise themselves fully with, and to understand, in particular, the information concerning the function of the cosmetic product concerned and the particular precautions to be observed when using it. The Court finds that the information which producers or distributors of cosmetics products covered by the regulation must mention on the product container and packaging, save where that information can be effectively conveyed by the use of pictogrammes or signs other than words, will be of no practical use unless it is given in a language which can be understood by the persons for whom it is intended.

Similarly, the fact that cosmetic product labelling is the responsibility of the manufacturer of those products, not their distributor, does not establish either that it is impossible for practical reasons to place the required information on the label of those products. In that regard, the Court points out that the intention on the part of the manufacturer or distributor of such products to facilitate their movement within the European Union is not in itself sufficient to justify reference to only some of the required information. Since ‘impossibility’ refers generally to a factual circumstance over which the person invoking it has no control, it cannot entitle a manufacturer or distributor of cosmetic products, because of the number of EU or other languages which it decides to use, to claim, for its own convenience, that full compliance is ‘impossible for practical reasons’ within the meaning of the regulation.

It follows that information concerning the particular precautions to be observed when using the cosmetic product, the product’s function and its ingredients may not appear in a company catalogue referred to by the symbol of a hand with an open book placed on the product’s packaging or container.

Footnotes:

(1) Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (OJ 2009 L 342, p. 59).

(2) Laid down in Article 19(1)(f) of the regulation.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.

Source: www.curia.eu

The existence of evidence of systemic or generalised deficiencies concerning judicial independence in Poland or of an increase in those deficiencies does not in itself justify the judicial authorities of the other Member States refusing to execute any European arrest warrant issued by a Polish judicial authority.

However, the execution of a European arrest warrant issued by a Polish judicial authority must be refused if, having regard to the individual situation of the person concerned, the nature of the offence in question and the factual context in which that European arrest warrant has been issued, there are substantial grounds for believing that, on account of those deficiencies, that person will run a real risk of breach of his or her right to a fair trial once he or she is surrendered to those authorities.

In August 2015 and February 2019, European arrest warrants (‘EAWs’) were issued by Polish courts against two Polish nationals for the purposes of conducting a criminal prosecution and executing a custodial sentence. Since the persons concerned are in the Netherlands, the officier van justitie (representative of the public prosecution service, Netherlands) referred the requests for execution of those EAWs to the rechtbank Amsterdam (District Court, Amsterdam, Netherlands).

However, that court has doubts as to whether it should accede to those requests. More specifically, it raises the question of the implications of the judgment in Minister for Justice and Equality (Deficiencies in the system of justice) (1), which was delivered against the backdrop of the reforms of the Polish judicial system. In that judgment, the Court held that, by way of exception, the execution of an EAW may be refused if it is established that the person concerned might, if he or she is surrendered to the Member State which issued the EAW, sustain a breach of his or her right to an independent tribunal, which is an essential component of the right to a fair trial (2). Nevertheless, such a refusal is possible only following a two-step examination: having assessed in a general manner whether there is objective evidence of a risk of breach of that right, on account of systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary, the executing judicial authority must then determine to what extent such deficiencies are liable to have an actual impact on the situation of the person concerned if he or she is surrendered to the judicial authorities of that Member State.

On account of recent developments (3), some of which have occurred after the EAW in question was issued, the rechtbank Amsterdam considers that the deficiencies in the Polish system of justice are such that the independence of all Polish courts and, consequently, the right of all individuals in Poland to an independent tribunal are no longer ensured. In that context, the rechtbank is uncertain whether that finding is sufficient in itself to justify a refusal to execute an EAW issued by a Polish court, without there being any need to examine the impact of those deficiencies in the particular circumstances of the case.

In the context of the urgent preliminary ruling procedure (PPU), the Court, sitting as the Grand Chamber, answers that point in the negative, thus confirming its case-law established in the judgment in Minister for Justice and Equality (Deficiencies in the legal system).

The Court’s findings

In the first place, the Court holds that systemic or generalised deficiencies affecting the independence of the issuing Member State’s judiciary, however serious, are not sufficient on their own to enable an executing judicial authority to consider that all the courts of that Member State fail to fall within the concept of an ‘issuing judicial authority’ of an EAW (4), a concept which implies, in principle, that the authority concerned acts independently.

In that regard, first, the Court observes that such deficiencies do not necessarily affect every decision that those courts may be led to adopt. The Court goes on to state that, although limitations may in exceptional circumstances be placed on the principles of mutual trust and mutual recognition which underpin the operation of the EAW mechanism, denial of the status of ‘issuing judicial authority’ to all the courts of the Member State concerned by those deficiencies would lead to a general exclusion of the application of those principles in connection with the EAWs issued by those courts. Moreover, such an approach would have other very significant consequences since it would imply, inter alia, that the courts of that Member State would no longer be able to submit references to the Court for preliminary rulings (5). Lastly, the Court states that its recent case-law according to which the public prosecutors’ offices of certain Member States fail, in the light of their subordinate relationship to the executive, to provide sufficient guarantees of independence to be regarded as ‘issuing judicial authorities’ (6) cannot be transposed to Member States’ courts. In a Union based on the rule of law, the requirement that courts be independent precludes by its very nature any relationship of that type with the executive.

In the second place, the Court states that the existence of or an increase in systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary, which are indicative of a risk of breach of the right to a fair trial, does not however permit the presumption (7) that the person in respect of whom an EAW has been issued will actually run such a risk if he or she is surrendered. Thus, the Court maintains the requirement of a two-step examination set out in the judgment in Minister for Justice and Equality (Deficiencies in the legal system) and states that the finding of such deficiencies must indeed prompt the executing judicial authority to exercise vigilance but cannot dispense it from conducting, in accordance with the second step of that examination, a specific and precise assessment of the risk in question. That assessment must take account of the situation of the requested person, the nature of the offence in question and the factual context which forms the basis of the EAW, such as statements by public authorities which are liable to interfere with the way in which the individual case is handled. The Court points out in that regard that a general suspension of the EAW mechanism with regard to a Member State, which would make it permissible to refrain from carrying out such an assessment and to automatically refuse to execute EAWs issued by that Member State, is possible only if the European Council formally declares that the Member State has failed to respect the principles on which the Union is based (8).

Furthermore, the Court specifies that, where the EAW has been issued for the purposes of criminal proceedings, the executing judicial authority must, where appropriate, take account of systemic or generalised deficiencies concerning the independence of the issuing Member State’s judiciary which may have arisen after the EAW concerned was issued and assess to what extent those deficiencies are liable to have an impact at the level of that Member State’s courts with jurisdiction over the proceedings to which the person concerned will be subject. Where an EAW is issued with a view to the surrender of a requested person for the execution of a custodial sentence or a detention order, the executing judicial authority must examine to what extent the systemic or generalised deficiencies which existed in the issuing Member State at the time of issue of the European arrest warrant have, in the particular circumstances of the case, affected the independence of the court of that Member State which imposed the custodial sentence or detention order the execution of which is the subject of that EAW.

Footnotes:

(1) Judgment of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C-216/18 PPU; see also Press Release No 113/18.

(2) That right is guaranteed in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.

(3) Alongside other factors, the referring court mentions in particular the Court’s recent case-law in this area (judgments of 19 November 2019, A.K. (Independence of the Disciplinary Chamber of the Supreme Court), Joined Cases C-585/18, C-624/18 and C-625/18; see also Press Release No 145/19, and of 26 March 2020, Miasto Łowicz and Prokurator Generalny (Disciplinary regime concerning judges), Joined Cases C-558/18 and C-563/18; see also Press Release No 35/20, and the action for failure to fulfil obligations brought by the Commission against Poland (pending case C-791/19).

(4) Within the meaning of Article 6(1) of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States – Statements made by certain Member States on the adoption of the Framework Decision (OJ 2002 L 190, p. 1), as amended by Council Framework Decision 2009/299/JHA of 26 February 2009 (OJ 2009 L 81, p. 24).

(5) That approach would mean that no court of the issuing Member State would any longer be considered to satisfy the requirement of independence inherent in the concept of ‘court or tribunal’ within the meaning of Article 267 TFEU.

(6) See, in particular, the judgment of 27 May 2019, OG and PI (Public Prosecutor’s Offices in Lübeck and Zwickau), Joined Cases C-508/18 and C-82/19 PPU; see also Press Release No 68/19.

(7) Under Article 1(3) of the Framework Decision on the EAW.

(8) That procedure is provided for in Article 7(2) TEU.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.

Source: www.curia.eu

In order to promote animal welfare in the context of ritual slaughter, Member States may, without infringing the fundamental rights enshrined in the Charter, require a reversible stunning procedure which cannot result in the animal’s death.

A decree of the Flemish Region (Belgium) of 7 July 2017 (‘the decree’), amending the Law on the protection and welfare of animals, regarding permitted methods of slaughtering animals, prohibits animals from being slaughtered without prior stunning, including in the case of slaughter prescribed by a religious rite. In the context of ritual slaughter, the decree provides for the use of reversible stunning which cannot result in the animal’s death.

The decree was challenged, inter alia, by several Jewish and Muslim associations, seeking its annulment in whole or in part. In their view, in not allowing Jewish and Muslim believers to obtain meat from animals slaughtered in accordance with their religious precepts, which preclude the reversible stunning technique, the decree infringes Regulation No 1099/2009 (1) and, therefore, prevents believers from practising their religion.

It is in that context that the Grondwettelijk Hof (Constitutional Court, Belgium) decided to make a reference to the Court of Justice for a preliminary ruling in order to ascertain, principally, whether EU law precludes legislation of a Member State which requires, in the context of ritual slaughter, a reversible stunning procedure which cannot result in the animal’s death.

This question leads the Court, for the third time (2), to seek a balance between freedom of religion, guaranteed by Article 10 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and animal welfare, as set out in Article 13 TFEU and given specific expression to in Regulation No 1099/2009.

Findings of the Court

The Court, sitting as the Grand Chamber, observes, first of all, that the principle that an animal should be stunned prior to being killed, laid down by Regulation No 1099/2009, meets the main objective of the protection of animal welfare pursued by that regulation. In that regard, although the regulation (3) permits the practice of ritual slaughter in accordance with which an animal may be killed without first being stunned, that form of slaughter is, however, authorised only by way of derogation in the European Union and solely in order to ensure observance of freedom of religion. In addition, Member States may adopt national rules aimed at ensuring more extensive protection of animals at the time of killing than those contained in Regulation No 1099/2009 in relation to ritual slaughter (4). Thus, Regulation No 1099/2009 reflects the fact that the European Union and the Member States are to pay full regard to the welfare requirements of animals, while respecting the provisions and customs of the Member States relating in particular to religious rites. However, Regulation No 1099/2009 does not itself effect the necessary reconciliation between animal welfare and the freedom to manifest religion, but merely provides a framework for the reconciliation which Member States must achieve between those two values.

It follows that Regulation No 1099/2009 does not preclude Member States from imposing an obligation to stun animals prior to killing which also applies in the case of slaughter prescribed by religious rites, provided, however, that, in so doing, the Member States respect the fundamental rights enshrined in the Charter.

As regards, specifically, the question whether the decree respects those fundamental rights, the Court points out that ritual slaughter falls within the scope of the freedom to manifest religion, guaranteed in Article 10(1) of the Charter. By requiring, in the context of ritual slaughter, reversible stunning, contrary to the religious precepts of Jewish and Muslim believers, the decree thus entails a limitation on the exercise of the right of those believers to the freedom to manifest their religion.

In order to assess whether such a limitation is permissible, the Court finds, first of all, that the interference with the freedom to manifest religion resulting from the decree is indeed provided for by law and, moreover, respects the essence of Article 10 of the Charter, since it is limited to one aspect of the specific ritual act of slaughter, and that act of slaughter is not, by contrast, prohibited as such.

The Court then finds that that interference meets an objective of general interest recognised by the European Union, namely the promotion of animal welfare.

In its examination of the proportionality of the limitation, the Court concludes that the measures contained in the decree allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion. In that regard, it states, first, that the obligation to use reversible stunning is appropriate for achieving the objective of promoting animal welfare. Secondly, as regards the necessity of the interference, the Court emphasises that the EU legislature intended to give each Member State a broad discretion in the context of the need to reconcile the protection of the welfare of animals when they are killed and respect for the freedom to manifest religion. As it is, a scientific consensus has emerged that prior stunning is the optimal means of reducing the animal’s suffering at the time of killing. Thirdly, as regards the proportionality of that interference, the Court observes, first of all, that the Flemish legislature relied on scientific research and that it sought to give preference to the most up-to-date method of killing that is authorised. It points out, next, that that legislature forms part of an evolving societal and legislative context, which is characterised by an increasing awareness of the issue of animal welfare. Lastly, the Court finds that the decree neither prohibits nor hinders the putting into circulation of products of animal origin derived from animals which have undergone ritual slaughter, where those products originate in another Member State or in a non-Member State.

Accordingly, the Court holds that Regulation No 1099/2009, read in the light of Article 13 TFEU and Article 10(1) of the Charter, does not preclude legislation of a Member State which requires, in the context of ritual slaughter, a reversible stunning procedure which cannot result in the animal’s death.

In addition, the Court upholds the validity of Regulation No 1099/2009 (5) in the light of the principles of equality, non-discrimination and cultural, religious and linguistic diversity, as guaranteed by the Charter (6). The fact that Regulation No 1099/2009 authorises Member States to take measures such as compulsory stunning in the context of ritual slaughter, but contains no similar provision governing the killing of animals in the context of hunting and recreational fishing activities or during cultural or sporting events, is not contrary to those principles.

In that regard, the Court points out that cultural and sporting events result at most in a marginal production of meat which is not economically significant. Consequently, such events cannot reasonably be understood as a food production activity, which justifies their being treated differently from slaughtering. The Court draws the same conclusion with regard to hunting and recreational fishing activities. Those activities take place in a context where conditions for killing are very different from those employed for farmed animals.

Footnotes:

(1) Council Regulation (EC) No 1099/2009 of 24 September 2009 on the protection of animals at the time of killing (OJ 2009 L 303, p. 1).

(2) After the judgments of 29 May 2018, Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen and Others, C-426/16 (see Press Release No 69/18), and of 26 February 2019, Œuvre d’assistance aux bêtes d’abattoirs, C-497/17 (see Press release No 15/2019).

(3) Article 4(4) of Regulation No 1099/2009.

(4) Point (c) of the first subparagraph of Article 26(2) of Regulation No 1099/2009.

(5) In particular, point (c) of the first subparagraph of Article 26(2), concerning the power of Member States to adopt national rules aimed at ensuring more extensive protection of animals in the case of ritual slaughter.

(6) Articles 20, 21 and 22 of the Charter, respectively.

NOTE: A reference for a preliminary ruling allows the courts and tribunals of the Member States, in disputes which have been brought before them, to refer questions to the Court of Justice about the interpretation of European Union law or the validity of a European Union act. The Court of Justice does not decide the dispute itself. It is for the national court or tribunal to dispose of the case in accordance with the Court’s decision, which is similarly binding on other national courts or tribunals before which a similar issue is raised.

Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.

Source: www.curia.eu

State moratorium on evictions lawful in property acquirer’s case

In today’s Chamber judgment1 in the case of Béla Németh v. Hungary (application no. 73303/14) the European Court of Human Rights held, unanimously, that there had been:

no violation Article 1 of Protocol No. 1 (protection of property) and Article 14 (prohibition of discrimination) to the European Convention on Human Rights.

The case concerned the applicant’s not being able to take possession of a property he had bought owing to a legal moratorium on evictions. State bodies had been exempt from the moratorium. He had had to wait two years before ultimately being able to exercise his ownership rights.

The Court found that the moratorium had had a basis in law, had served a legitimate interest, and, in particular, had not deprived him of his legitimate expectation regarding ownership of the property, merely delayed it.

The Court also found that the applicant’s situation had not been comparable to that of State actors and as such he had suffered no discrimination.

Principal facts

The applicant, Béla Miklós Németh, is a Hungarian national who was born in 1948 and lives in Kistarcsa (Hungary).

In 2014 the applicant bought a property at auction. It was being sold in judicial enforcement proceedings which had arisen from a debt.

A legal amendment to the Enforcement Act was introduced, placing a moratorium on evictions caused by the recovery of debts in an effort to mitigate the effects of the 2008 financial crisis. The moratorium did not apply to agents of the State. It initially had no set end date.

The applicant had not yet been given title to the property and the debtor could now not be evicted. The applicant submits that he was able to get title to and possession of the property only two years after he had purchased it.

Complaints

Relying on Articles 1 of Protocol No. 1 (protection of property) and 14 (prohibition of discrimination), the applicant complained that he had been denied use of his property and that he had been discriminated against in that the relevant legislation had protected State-owned actors to the detriment of the private sector.

The application was lodged with the European Court of Human Rights on 14 November 2014.

Decision of the Court

Article 1 of Protocol No. 1

The Government argued that the applicant had had an expectation that he would acquire the assetwhen he had bought the property. However that had been insufficient to engage his Convention rights, as he had not as yet been the owner. The Government also highlighted the societal need for the measures the State had taken. The applicant, however, stated that the property had been part of his portfolio of assets.

The Court considered that the applicant had at least a legitimate expectation of ownership under Hungarian law, constituting a possession for the purposes of the Convention. The application was admissible.

The Court reiterated that interferences with private property had to be lawful, had to pursue a legitimate aim in the public interest, and had to strike a balance between the general interest and the individual’s rights.

The parties did not dispute that the applicant had had his use of his property “controlled” by the State. The Court agreed.

The Court noted that the moratorium had had a basis in law. Questions around uncertainty in the relevant law were questions of fair balance, in the Court’s opinion.

The Court adjudged that the actions of the national legislature in enacting the moratorium had fallen within its discretion and had not been “manifestly without reasonable foundation”. The moratorium had met the public-interest requirements of the Convention.

The Court noted that a temporary suspension or staggering of enforcement of court orders fell within the discretion of the national authorities. The Court was aware of the crisis in Hungary at the time and the need to prevent large numbers of its citizens being made homeless. It furthermore found that the moratorium had not deprived the applicant of his legitimate expectation vis-à-vis the property, merely delayed his taking ownership. The Court also noted that the legislation had been quickly amended, with a sunset provision being added.

As the applicant had not had to bear an excessive individual burden, the Court found that there had been no violation of his rights.

Article 14

The Court found Article 14 of the Convention applicable. It reiterated that States enjoyed wide discretion in the area of housing regulation, because of the complex social and political issues. In the present case the Court considered that although State actors had been exempted from the moratorium, that had been with a number of stipulations regarding actions to be taken.

Furthermore, the main operators in the area – that is to say providers of rental accommodation – were in the private sector, so inevitably the moratorium had applied more to them.

Ultimately, as the applicant’s situation had not been “relevantly similar” to those of State bodies, the Court stated that he could not be said to have suffered discrimination. There had accordingly been no violation of the Convention.

The judgment is available only in English.

Footnotes:

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Source: www.echr.coe.int

By unilaterally seizing documents that are part of the archives of the ECB, Slovenia failed to fulfil its obligation to respect the principle of the inviolability of the archives of the Union.

Furthermore, by failing to cooperate properly with the ECB to eliminate the unlawful consequences of that infringement, Slovenia also failed to fulfil its obligation of sincere cooperation with regard to the European Union

On 6 July 2016, the Slovenian authorities searched the premises of the Banka Slovenije (Central Bank of Slovenia) and seized paper and electronic documents there. The documents seized by those authorities included all communications sent through the email account of the Governor at that time, all the electronic documents on his workspace computer and on his laptop concerning the period between 2012 and 2014, irrespective of their content, and documents relating to that period that were in the Governor’s office. Those interventions took place in connection with an investigation against certain members of staff of the Banka Slovenije, including that governor, on suspicion of abuse of power and of official functions in connection with the restructuring, in 2013, of a Slovenian bank. Although the Banka Slovenije argued that those measures infringed the principle of the inviolability of the ‘archives of the European Central Bank (ECB)’ resulting from the Protocol on the privileges and immunities of the European Union (1) and requiring that any access by the national authorities to those archives be subject to the express agreement of the ECB, the Slovenian authorities continued with that search and seizure of documents without involving the ECB.

In that context, the ECB explained to the Slovenian authorities that its archives included not only the documents which it had drawn up itself in the performance of its tasks but also the communications between it and national central banks which were necessary for the performance of the tasks of the European System of Central Banks (ESCB) or of the Eurosystem and the documents drawn up by those central banks for the performance of the tasks of the ESCB or of the Eurosystem. The ECB also maintained that, subject to certain conditions, it would not refuse to waive the protection enjoyed by the documents seized by the Slovenian authorities.

Considering, first, that the unilateral seizure of the documents at issue constitutes an infringement of the principle of the inviolability of the archives of the ECB (2) and, secondly, that the Slovenian authorities, contrary to what is required by the obligation of sincere cooperation (3), had not engaged in constructive discussion to eliminate the unlawful consequences of the infringement of that principle, the Commission brought an action for failure to fulfil obligations against Slovenia before the Court of Justice.

In its judgment, the Court, sitting as the Grand Chamber, upholds the Commission’s action and declares that the infringements alleged took place in their entirety. This case has thus given the Court the opportunity to state the conditions applicable to the protection of the archives of the Union with regard to a unilateral seizure of documents forming part of those archives made by the authorities of a Member State in places other than the buildings and premises of the European Union and, in particular, the conditions under which a finding of infringement of the principle of the inviolability of the archives of the ECB may be made.

Findings of the Court

– The concept of ‘archives of the ECB’

The Court points out that, since the ECB is an EU institution, the principle of the inviolability of the archives of the Union applies to its archives. In that regard, the Court states that the archives of the Union cover the archives of an EU institution such as the ECB even if they are stored in places other than the buildings and premises of the European Union (4).

In this connection, the Court observes that the ECB and the national central banks of the Member States constitute the ESCB and that the monetary policy of the Union is conducted by the ECB and the national central banks of the Member States whose currency is the euro (including the Banka Slovenije), those banks constituting the Eurosystem (5). The governors of those banks, including the Governor of the Banka Slovenije, are members of the Governing Council of the ECB (6) and participate in the adoption of the decisions necessary to perform the tasks of the ESCB. The primary objective of the ESCB is to maintain price stability. To that end, the basic tasks to be carried out through the ESCB include, inter alia, that of defining and implementing the monetary policy of the Union (7), which requires close cooperation between the ECB and the national central banks (8). In this system, the national central banks and their governors have a hybrid status inasmuch as, although they constitute national authorities, they are authorities acting under the ESCB, which is constituted by those national central banks and the ECB.

The Court points out that the correct functioning of the ESCB and of the Eurosystem and the proper performance of their tasks require close cooperation and permanent exchange between the ECB and the national central banks which participate in those systems, which necessarily means that documents linked to the performance of the tasks of the ESCB and of the Eurosystem are in the possession not only of the ECB but also of the national central banks.

In those circumstances, the Court takes the view that such documents are covered by the concept of ‘archives of the ECB’ even if they are held by the national central banks and not by the ECB itself.

– The infringement of the principle of the inviolability of the archives of the ECB

The Court notes that, in the present case, an infringement of the principle of the inviolability of the archives of the ECB may only be found if, first, a seizure decided upon unilaterally by the national authorities of documents belonging to the archives of the Union may constitute such an infringement and, secondly, the documents seized in fact included documents which must be considered to form part of the archives of the ECB.

In the first place, the Court finds that the concept of ‘inviolability’ means protection against any unilateral interference on the part of the Member States. That is confirmed by the fact that that concept is described as protection against any search, requisition, confiscation or expropriation measures. Therefore, the Court holds that the unilateral seizure by the national authorities of documents belonging to the archives of the Union constitutes an infringement of the principle of the inviolability of those archives of the Union.

In the second place, the Court recalls that it is for the Commission, in an action for failure to fulfil obligations, to prove the existence of the alleged infringement. It must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose. In the present case, the Commission has acknowledged that it did not have specific information as to the nature of the documents at issue seized by the Slovenian authorities, such that it was not in a position to determine whether a subset of those documents had to be regarded as forming part of the archives of the Union.

However, having regard to the considerable number of documents at issue seized and to the duties that the governor of a national central bank, such as the Banka Slovenije, is called upon to carry out within the framework of the Governing Council of the ECB, and therefore within the framework of the ESCB and the Eurosystem, the Court considers it to be established that the documents seized by the Slovenian authorities must have included documents which were part of the archives of the ECB. It also holds that, by seizing such documents unilaterally, the Slovenian authorities infringed the principle of the inviolability of the archives of the ECB.

In that context, the Court notes that the Protocol on privileges and immunities and the principle of the inviolability of the archives of the Union preclude, in principle, the seizure of documents by the authority of a Member State where those documents are part of those archives and the institutions have not agreed to such a seizure. Nevertheless, that authority has the option of requesting the EU institution concerned to waive the protection enjoyed by the documents concerned, subject to conditions if necessary and, in the event that access is refused, of applying to the EU judicature for a decision of authorisation forcing that institution to give access to its archives. Furthermore, the protection of the archives of the Union does not preclude in any way the seizure by the national authorities at the premises of a Member State’s central bank of documents which do not belong to the archives of the Union.

– Failure to comply with the obligation of sincere cooperation

After recalling its settled case-law relating to the scope of the obligation of sincere cooperation, the Court observes that by failing to have allowed the ECB, by the end of the period fixed in the reasoned opinion, to identify, among the documents seized on 6 July 2016, those linked to the performance of the tasks of the ESCB and of the Eurosystem and by failing to have returned those documents to the Banka Slovenije, the Slovenian authorities failed to fulfil their obligation of sincere cooperation with the ECB. That conclusion is not affected by the fact that the Prosecutor-General requested the ECB to propose criteria to him which could identify those of the documents seized by the Slovenian authorities which, according to the ECB, were part of its archives. Even after receiving that proposal, the Slovenian authorities did not take measures to enable the ECB to identify the documents linked to the performance of the tasks of the ESCB and of the Eurosystem which had been seized. Furthermore, those authorities did not accede to the ECB’s request to return to the Banka Slovenije all the documents which they considered to be of no relevance for the purposes of the investigation at issue.

In that context, the Court considers that the fact that the Slovenian authorities took measures to ensure that the confidentiality of those documents was maintained does not cast doubt on the finding that, in the present case, those authorities failed to fulfil their obligation of sincere cooperation with the ECB.

Accordingly, as regards the period after the contested seizure, the Court holds that the Slovenian authorities failed to fulfil their obligation of sincere cooperation with the ECB.

Footnotes:

(1) Protocol (No 7) on the privileges and immunities of the European Union (OJ 2016 C 202, p. 266).

(2) Article 343 TFEU; Article 39 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank (OJ 2016 C 202, p. 230); Articles 2 and 22 of the Protocol on privileges and immunities.

(3) Article 4(3) TEU; Article 18 of the Protocol on privileges and immunities.

(4) Articles 1 and 2 of the Protocol on privileges and immunities

(5) Article 282(1) TFEU; Articles 1 and 14.3 of the Protocol on the ESCB and the ECB.

(6) Article 283(1) TFEU; Article 10.1 of the Protocol on the ESCB and the ECB.

(7) Article 127(2) TFEU.

(8) Article 9.2 of the Protocol on the ESCB and the ECB.

NOTE: An action for failure to fulfil obligations directed against a Member State which has failed to comply with its obligations under European Union law may be brought by the Commission or by another Member State. If the Court of Justice finds that there has been a failure to fulfil obligations, the Member State concerned must comply with the Court’s judgment without delay. Where the Commission considers that the Member State has not complied with the judgment, it may bring a further action seeking financial penalties. However, if measures transposing a directive have not been notified to the Commission, the Court of Justice can, on a proposal from the Commission, impose penalties at the stage of the initial judgment.

Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.

Source: www.curia.eu

A journalist’s conviction for using information obtained in breach of the secrecy of the investigation did not constitute excessive interference with his freedom of expression.

In today’s Chamber judgment (1) in the case of Sellami v. France (application no. 61470/15) the European Court of Human Rights held, unanimously, that there had been:

no violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned the conviction of a journalist for using information obtained in breach of professional secrecy, following the publication of a composite image produced by the police in connection with an ongoing investigation.

The Court saw no strong reason to question the assessment made by the domestic courts, which had found, firstly, that the interest in informing the public had not justified the use of the item of evidence in question and, secondly, that the publication of the material had had a negative impact on the conduct of the criminal proceedings.

In view of these considerations, and taking into account the margin of appreciation left to States and the fact that the exercise of balancing the competing interests at stake had been properly conducted by the domestic courts, which had applied the relevant criteria under the Court’s case-law, the Court concluded that there had been no violation of Article 10 of the Convention protecting freedom of expression.

Principal facts

The applicant, Stéphane Sellami, is a French national who was born in 1972 and lives in Saint-Ouen (France).

On 23 December 2011 two women were raped in Paris, and one of them was also the victim of an attempted killing. The investigation was assigned to the Paris 3rd police district, headed by Superintendent D.

On 28 December 2011 a 15-year-old girl was raped and stabbed in Étampes in the département of Essonne. On 30 December 2011 a composite image of the suspect was produced by the forensic identification unit on the basis of the testimony of the third victim.

On 3 January 2012 the Paris public prosecutor opened a judicial investigation concerning all the offences, and on 4 January 2012 the investigating judge issued instructions to the 3rd police district.

On the same day Superintendent D., head of the investigating unit, sent an email to his team members informing them that he had received a telephone call from the applicant, who was not to be provided with any information.

On 11 January 2012 the existence of the composite image was disclosed by the magazine Le
Nouveau Détective. The following day the daily newspaper Le Parisien devoted a full page to the information, publishing three articles written by the applicant in its news in brief section, one of which included the image. On 13 January 2012, following the publication of the articles and in view of the fact that the composite image did not match the suspect who had been identified by photographs in the meantime, the investigating judge and the criminal investigation department decided to issue an appeal for witnesses, publishing a photograph of the individual they were seeking to trace.

On 19 January 2012 Superintendent D. sent a report to his supervisors complaining of a breach of the secrecy of the investigation on account of the publication of the composite image in Le Parisien on 12 January 2012. The public prosecutor ordered an investigation concerning a breach of the secrecy of the investigation.

In a judgment of 21 November 2012 the Paris Criminal Court found the applicant guilty of using information obtained in breach of professional secrecy and ordered him to pay a fine of 8,000 euros (EUR), together with one euro in damages to the victims who had joined the proceedings as civil parties. In a judgment of 16 January 2014 the Paris Court of Appeal upheld the first-instance judgment as to the finding of guilt, but reduced the sentence to a fine of EUR 3,000. The Court of Cassation dismissed an appeal on points of law lodged by the applicant.

Complaints

Relying on Article 10 (freedom of expression), the applicant maintained that his conviction for using information obtained in breach of professional secrecy, following the publication of a composite image produced by the police in connection with an ongoing investigation, had been contrary to the Convention.

The application was lodged with the European Court of Human Rights on 5 December 2015.

Decision of the Court

Article 10

After noting that there had been interference with the applicant’s exercise of his right to freedom of expression, the Court observed that it had previously held that the conviction of a journalist for using information obtained in breach of professional secrecy, under Article 321-1 of the Criminal Code, satisfied the requirement of foreseeability of the law for the purposes of Article 10 of the Convention (Dupuis and Others v. France, § 31; Hacquemand v. France; and Ressiot and Others v. France, §§ 107-108). As it saw no reason in the present case to depart from that finding, the Court concluded that the interference in question had been “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention.

The Court had also ruled previously that interference based on the need to safeguard the secrecy of the judicial investigation was aimed at ensuring the proper conduct of the investigation and thus maintaining the authority and impartiality of the judiciary. This also applied where the case concerned professional secrecy designed to prevent the disclosure of confidential information. In the present case the interference had been based on the need to ensure the requisite confidentiality of information concerning the conduct of a criminal investigation and, more generally, to maintain the authority and impartiality of the judiciary. It had therefore pursued a legitimate aim.

As to the necessity of the interference and the case-law criteria that were applicable, the Court noted that the domestic courts had taken the view that the applicant, a journalist by profession, could not have been unaware that the composite image which he possessed and was planning to publish was covered by the secrecy of the investigation. In its judgment of 16 January 2014 the Court of Appeal had observed that the telephone call which the applicant had admitted making to Superintendent D. confirmed the fact that he was aware that a judicial investigation had been opened and that the composite image which he had obtained formed part of the case file.

With regard to the article in Le Parisien, the Court noted that the publication of the image in question, together with a short caption commenting on it, had been part of a set of articles written by the applicant, covering an entire page, on the subject of a series of rapes and assaults apparently carried out by the same perpetrator. The layout had given particular prominence to the composite image. In line with the assessment of the domestic courts, the Court considered that these editorial choices left no doubt as to the sensationalist approach taken by the applicant.

Moreover, the Court stressed the fact that by the time it was published the image in question, which had been produced originally on the basis of a description provided by just one victim, no longer matched the description of the alleged perpetrator, as the investigators had obtained several photographs of the suspect in the meantime. The domestic courts had therefore correctly found that, in publishing the composite image, the applicant had presented it as matching the description of the serial rapist, without concern for its reliability or for the impact on the ongoing judicial investigation, in breach of the duties and responsibilities entailed in the exercise by journalists of freedom of expression.

The Court acknowledged that the subject of the article, namely the criminal investigation into a series of rapes and knife attacks on women in Paris and the surrounding suburbs, had been a matter of public interest. Firstly, however, the sensationalist way in which the image was presented had been designed primarily to satisfy the public’s curiosity; secondly, the information disseminated had been inaccurate and had been bound to mislead the reader.

Accordingly, the Court could discern no strong reason to question the assessment made by the domestic courts in finding that the interest in informing the public had not justified the use of the composite image.

Furthermore, the Court reiterated that it was legitimate for special protection to be afforded to the secrecy of a judicial investigation, in view of what was at stake in criminal proceedings, both for the administration of justice and for the right of persons under investigation to be presumed innocent. The present case related more specifically to ensuring the requisite confidentiality of information concerning the conduct of a criminal investigation, in order to maintain the authority and impartiality of the judiciary.

The risk of influencing proceedings justified per se the adoption by the domestic authorities of deterrent measures such as prohibiting the disclosure of secret information.

In the present case the domestic courts had taken the view that the publication of the article in question had interfered with the normal conduct of the investigations, observing that the publishing of the image had been interpreted by some readers as an appeal for witnesses. This had resulted in a large volume of telephone calls to the police and had prompted the investigating judge and the criminal investigation department, the day after the article had appeared, to launch an appeal for witnesses accompanied by a photograph of the man they were seeking to trace. The domestic courts had noted that the journalist in question had knowingly interfered in the conduct of the investigation, which had been at its most delicate stage, that of identifying and apprehending the suspect. The Court could discern no strong reason to question the assessment that the publication of the material had had a negative impact on the conduct of the criminal proceedings.

As to the financial penalty imposed, the Court considered that the recourse to criminal proceedings and the penalty imposed on the applicant – a fine of EUR 3,000 instead of the amount of EUR 8,000 originally ordered by the Criminal Court – had not amounted to disproportionate interference with the exercise of his right to freedom of expression. In the Court’s view, it could not be maintained that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by the applicant or any other journalist wishing to inform the public about ongoing criminal proceedings.

In view of the margin of appreciation available to States and the fact that the exercise of balancing the various competing interests had been properly conducted by the domestic courts, which had applied the relevant criteria under its case-law, the Court concluded that there had been no violation of Article 10 of the Convention.

The judgment is available only in French.

Footnotes:

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Source: www.echr.coe.int

Hungary has failed to fulfil its obligations under EU law in the area of procedures for granting international protection and returning illegally staying third-country nationals.

In particular, restricting access to the international protection procedure, unlawfully detaining applicants for that protection in transit zones and moving illegally staying third-country nationals to a border area, without observing the guarantees surrounding a return procedure, constitute infringements of EU law.

In response to the migration crisis and to the ensuing arrival of large numbers of applicants for international protection, Hungary adapted its legislation on the right to asylum and return of illegally staying third-country nationals. Thus, a law of 2015 (1) provided, inter alia, for the creation of transit zones, situated at the Serbian-Hungarian border (2), in which asylum procedures are applied. That law also introduced the concept of a ‘crisis situation caused by mass immigration’, leading, where such a situation is declared by the Government, to the application of derogatory rules in the guise of general rules. In 2017, a new law (3) expanded the cases in which such a crisis situation could be declared and amended the provisions allowing derogation from the general provisions.

In 2015, the European Commission had already expressed its doubts to Hungary as to the compatibility of its asylum legislation with EU law. The 2017 law raised additional concerns. It criticises Hungary in particular for having, in disregard of the substantive and procedural safeguards provided for in the Procedures (4), Reception (5) and Return (6) Directives, restricted access to the international protection procedure, established a system of systematic detention of applicants for that protection and forcibly deported, to a strip of land at the border, illegally staying thirdcountry nationals, without observing the guarantees provided for in the Return Directive. In that context, it brought an action for failure to fulfil obligations before the Court, seeking a declaration that a substantial part of the Hungarian legislation in the area infringes certain provisions of those directives.

The Court, sitting as the Grand Chamber, has upheld for the most part the Commission’s action for failure to fulfil obligations.

Findings of the Court

As a preliminary point, the Court notes that it has already settled some of the issues raised by the action in a recent judgment (7), delivered in the context of a reference for a preliminary ruling made by a Hungarian court. It also notes that, in order to comply with that judgment, Hungary has since closed its two transit zones. The Court emphasises, however, that that closure has no bearing on the present action, the situation falling to be assessed at the date laid down by the Commission in its reasoned opinion for addressing shortcomings, namely 8 February 2018.

In the first place, the Court holds that Hungary has failed to fulfil its obligation to ensure effective access to the procedure for granting international protection (8), in so far as third country nationals wishing to access, from the Serbian-Hungarian border, that procedure were in practice confronted with the virtual impossibility of making their application. That failure stems from a combination of the national legislation, according to which applications for international protection may, as a general rule, be made only in one of the two transit zones, and a consistent and generalised administrative practice, established by the Hungarian authorities, consisting in drastically limiting the number of applicants authorised to enter those zones each day. For the Court, the existence of that practice has been sufficiently demonstrated by the Commission, which relied on a number of international reports. In that context, the Court recalls that the making of an application for international protection, prior to its registration, lodging and examination, is an essential step in the procedure for granting that protection and that Member States cannot delay it unjustifiably. On the contrary, Member States must ensure that the persons concerned are able to make an application, including at the borders, as soon as they declare their wish of doing so.

In the second place, the Court confirms, as it has recently held (9), that the obligation on applicants for international protection to remain in one of the transit zones for the duration of the procedure for examination of their application constitutes detention, within the meaning of the Reception Directive (10). That matter having been clarified, the Court finds that this system of detention was established outside the cases set out in EU law and without observance of the guarantees which must normally govern it.

After all, first, the Court recalls that the situations in which the detention of an applicant for international protection is authorised are listed exhaustively in the Reception Directive (11) After analysing each of those situations, however, it concludes that the Hungarian system is not covered by any of them. The Court examines in particular the situation in which a Member State may detain an applicant for international protection in order to rule on his or her right of entry into its territory, that detention being able to take place in the context of procedures applied at the border, with a view to verifying, before granting a right of entry, whether the application is not inadmissible or whether it is unfounded for certain specific reasons (12). The Court considers, however, that the conditions in which detention is authorised in the context of those border procedures are not fulfilled in this case.

Second, the Court emphasises that the Procedures and Reception Directives require, inter alia, that detention be ordered in writing with reasons (13), that the specific needs of applicants identified as vulnerable and in need of special procedural guarantees be taken into account, in order that they receive ‘adequate support’(14), and that minors be placed in detention only as a last resort (15). Owing, in particular, to its systematic and automatic nature, however, the detention regime provided for under the Hungarian legislation in the transit zones, which concerns all applicants other than unaccompanied minors under 14 years of age, does not allow applicants to enjoy those guarantees.

Moreover, the Court rejects Hungary’s argument that the migration crisis justified derogating from certain rules in the Procedures and Reception Directives, with a view to maintaining public order and preserving internal security, in accordance with Article 72 TFEU (16). In that regard, it recalls that that article must be interpreted strictly and considers that Hungary does not demonstrate sufficiently its necessity of having had recourse to it. In addition, the Court points out that the Procedures and Reception Directives already take into account the situation where a Member State must face a very significant increase in the number of applications for international protection, since they provide, by specific provisions, for the possibility of departing from some of the rules imposed in normal times.

In the third place, the Court holds that Hungary has failed to fulfil its obligations under the Return Directive, in so far as the Hungarian legislation allows for the removal of third country nationals who are staying illegally in the territory without prior compliance with the procedures and safeguards provided for in that directive (17). On that point, the Court notes that those nationals are forcibly escorted, by the police, from the other side of a fence erected a few metres from the border with Serbia, to a strip of land devoid of any infrastructure. According to the Court, such forced deportation is equivalent to removal, within the meaning of the Return Directive, the persons concerned in practice having no choice other than leaving Hungarian territory afterwards and going to Serbia. In that context, the Court recalls that an illegally staying third country national falling within the scope of the Return Directive must be the subject of a return procedure, in compliance with the substantive and procedural safeguards established by that directive, before his or her removal, where appropriate, is carried out, it being understood that forced removal is to take place only as a last resort. Furthermore, for reasons similar to those set out above, the Court rejects Hungary’s line of argument according to which it was allowed, pursuant to Article 72 TFEU, to derogate from the substantive and procedural safeguards established by the Return Directive.

In the fourth place, the Court considers that Hungary has not respected the right, conferred, in principle, by the Procedures Directive on any applicant for international protection, to remain in the territory of the Member State concerned after the rejection of his or her application, until the time limit within which to bring an appeal against that rejection or, if an appeal has been brought, until a decision has been taken on it (18). After all, the Court notes that, when a ‘crisis situation caused by mass immigration’ has been declared, the Hungarian legislation makes the exercise of that right subject to detailed rules not in conformity with EU law, in particular the obligation to remain in the transit zones, which resembles detention contrary to the Procedures and Reception Directives. On the other hand, when such a situation has not been declared, the exercise of that right is made subject to conditions which, while not necessarily contrary to EU law, are not defined in a sufficiently clear and precise manner to enable the persons concerned to ascertain the exact extent of their right and the compatibility of those conditions with the Procedures and Reception Directives to be assessed.

Footnotes:

(1) Egyes törvényeknek a tömeges bevándorlás kezelésével összefüggő módosításáról szóló 2015. évi CXL. törvény (Law No CXL of 2015 amending certain laws in the context of managing mass immigration) (Magyar Közlöny 2015/124).

(2) The transit zones of Röszke and Tompa.

(3) Határőrizeti területen lefolytatott eljárás szigorításával kapcsolatos egyes törvények módosításáról szóló 2017. évi XX. törvény (Law No XX of 2017 amending certain laws related to the strengthening of the procedure conducted in the guarded border area) (Magyar Közlöny 2017/39).

(4) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180 p. 60) (‘the Procedures Directive’).

(5) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96) (‘the Reception Directive’).

(6) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third country nationals (OJ 2008 L 348, p. 98) (‘the Return Directive’).

(7) Judgment of 14 May 2020, Országos Idegenrendézeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C-924/19 PPU and C-925/19 PPU, see also Press Release No 60/20).

(8) That obligation is apparent from Article 6 of the Procedures Directive, read in conjunction with Article 3 thereof.

(9) Abovementioned judgment of 14 May 2020.

(10) Article 2(h) of that directive.

(11) Article 8(3), first subparagraph, of that directive.

(12) Article 8(3), first subparagraph, point (c), of the Reception Directive and Article 43 of the Procedures Directive.

(13) Article 9(2) of the Reception Directive.

(14) Article 24(3) of the Procedures Directive.

(15) Article 11(2) of the Reception Directive.

(16) That article provides that the provisions which appear under Title V of the FEU Treaty, relating to the area of security, freedom and justice, are not to affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

(17) Those safeguards are laid down inter alia in Articles 5, 6(1), 12(1) and 13(1) of the Return Directive.

(18) Article 46(5) Procedures Directive.

NOTE: An action for failure to fulfil obligations directed against a Member State which has failed to comply with its obligations under European Union law may be brought by the Commission or by another Member State. If the Court of Justice finds that there has been a failure to fulfil obligations, the Member State concerned must comply with the Court’s judgment without delay. Where the Commission considers that the Member State has not complied with the judgment, it may bring a further action seeking financial penalties. However, if measures transposing a directive have not been notified to the Commission, the Court of Justice can, on a proposal from the Commission, impose penalties at the stage of the initial judgment.

Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.

Source: www.curia.eu

Dismissal of a teacher for giving classes in Serbian breached the European Convention.

In today’s Chamber judgment (1) in the case of Mile Novaković v. Croatia (application no. 73544/14) the European Court of Human Rights held, by six votes to one, that there had been:

a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights.

The case concerned a teacher’s complaint about being dismissed in 1999 for giving his classes in Serbian rather than in Croatian. Of Serb ethnicity, he had lived and worked in Croatia for most of his professional life and at the time of his dismissal was working at a secondary school in Eastern Slavonia, in an area which had been peacefully reintegrated into Croatian territory after the war. The authorities held in particular that he could not be expected to learn Croatian, given that he was 55 years old at the time.

The Court ruled that the authorities had dismissed the teacher, without considering any alternatives such as training. Relying solely on his age and years of service, the authorities had applied the most severe sanction, thereby significantly interfering with his rights.

Principal facts

The applicant, Mile Novaković, now deceased, was a Croatian national who was born in 1944 and lived in Darda (Croatia).

Mr Novaković, of Serb ethnicity, worked as a teacher in Croatia from 1971. From July 1998 he was employed in a secondary school in the Darda region, an area in Eastern Slavonia which was peacefully reintegrated into Croatian territory after the war.

Following an inspection carried out only on teachers of Serb ethnicity, the applicant was initially prohibited from teaching in administrative proceedings. The Administrative Court ultimately set aside that decision in 2006, on the grounds that the question of which language the classes at the applicant’s school were meant to be taught in at the time had not been conclusively established.

In the meantime, the school dismissed the applicant in March 1999 for failing to use the standard Croatian while teaching, as provided for under the relevant domestic law. It concluded that it could not transfer the applicant because there were no posts in the school for teaching in Serbian. Nor could he be provided with training as he could not be expected to learn Croatian given that he was 55 years old at the time.

The applicant challenged his dismissal in the courts, including by lodging a complaint in 2011 with the Constitutional Court, in vain.

Complaints

Relying on Article 8 (right to private life), Article 14 (prohibition of discrimination) and Article 1 of Protocol No. 12 (general prohibition of discrimination), the applicant complained that his dismissal had been arbitrary and that he had been discriminated against on the basis of his age and his Serb ethnicity. He argued in particular that not knowing a couple of words in Croatian during his inspection should not have led to such a drastic measure as dismissal.

The application was lodged with the European Court of Human Rights on 17 November 2014.

Decision of the Court

Article 8 (right to private life)

First, the Court was satisfied that the reasons for the applicant’s dismissal – using Serbian in his daily work and alleged inability to adapt his language of instruction to the requirements of his post due to his age – had been sufficiently linked to his private life. In particular the language used by an individual necessarily formed part of his or her ethnic identity, while age was part of a person’s physical identity. Article 8 was therefore applicable in the case.

The Government argued that the applicant’s dismissal had been necessary to protect the right of pupils to an education in the Croat language. While the Court in no way wished to undermine that aim or its importance in the specific context of the Eastern Slavonia region at the time, it noted that no alternatives to dismissal which would have allowed the applicant to align his teaching with the legislation in force had ever been contemplated in his case.

The education inspector had simply decided that the applicant should be prohibited from teaching, without giving him the opportunity to correct the irregularities in his work within a certain period of time, which was a possibility under the relevant domestic law.

The school had rejected the possibility of additional training, purely on the grounds of the applicant’s age and years of service. Moreover, neither the school nor any of the domestic courts had ever provided a detailed and convincing explanation as to why the applicant’s age would have been an insurmountable impediment to him adjusting his teaching plan so that he could teach in the standard Croatian.

Indeed, given the undeniable proximity of the two languages concerned, as well as the fact that the applicant had lived and worked in Croatia for most of his professional life, it was difficult to understand why the option of providing him with additional training had not been explored.

The Court also pointed out that, in any case, the domestic authorities themselves – administrative and civil courts – had had difficulties in establishing in which language the applicant had been expected to teach at the relevant time.

Lastly, no teachers of Croat ethnicity had been inspected at the applicant’s school. In the post-war context of the Eastern Slavonia region at the time, singling out a certain group of persons on the basis of language, which was closely related to their ethnicity, could potentially raise an issue of compatibility with the European Convention and the Croatian Constitution.

The Court concluded that the applicant’s dismissal from work had not corresponded to a pressing social need, nor had it been proportionate to the aim sought to be achieved, in violation of Article 8 of the Convention.

Other articles

The Court held, by six votes to one, that there was no need to examine separately the applicant’s complaints under Article 14 in conjunction with Article 8 of the Convention and under Article 1 of Protocol No. 12 to the Convention. It noted that it had already taken into account the domestic authorities’ reliance on the applicant’s age and their decision to inspect the work of only some teachers, based on their ethnic origin, in its examination of the complaint under Article 8.

Just satisfaction (Article 41)

The Court held that Croatia was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 850 in respect of costs and expenses.

Footnotes:

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Source: www.echr.coe.int

The Court of Justice upholds the judgments of the General Court in so far as it dismissed the actions for damages brought by a number of individuals and companies on account of acts and conduct adopted by the EU institutions in connection with financial assistance granted to Cyprus that was conditional upon the restructuring of its banking sector.

On the other hand, the General Court erred in law in holding that the Euro Group constitutes an EU body established by the Treaties whose acts or conduct might give rise to non-contractual liability of the European Union.

During the first months of 2012, several banks established in Cyprus, including Cyprus Popular Bank (‘Laïki’) and Trapeza Kyprou Dimosia Etaireia (Bank of Cyprus; ‘BoC’), encountered financial difficulties. On 25 June 2012, Cyprus therefore presented a request for financial assistance to the President of the Euro Group, which stated that such assistance would be provided by either the European Financial Stability Facility or the European Stability Mechanism (ESM) in the context of a macroeconomic adjustment programme that was to be defined in a memorandum of understanding. The negotiation of such a memorandum was conducted by the European Commission together with the European Central Bank (ECB) and the International Monetary Fund (IMF), on the one hand, and the Cypriot authorities, on the other. On 26 April 2013, a memorandum of understanding was thus signed by the Commission on behalf of the ESM, the Cypriot Minister for Finance and the Governor of the Central Bank of Cyprus, and this enabled the ESM to grant financial assistance to Cyprus.

A number of individuals and companies that held deposits with Laïki or BoC or were shareholders or bondholders of those banks took the view that the Council of the European Union, the Commission, the ECB and the Euro Group had, in the context of that memorandum of understanding, required the Cypriot authorities to adopt, maintain or continue to implement measures that caused a substantial reduction in the value of their deposits, shares or bonds. They therefore brought actions to establish non-contractual liability before the General Court of the European Union, in order to be compensated for the losses which they claim to have suffered because of those measures.

By two judgments of 13 July 2018, K. Chrysostomides & Co. and Others v Council and Others and Bourdouvali and Others v Council and Others (1), the General Court, first of all, dismissed the pleas of inadmissibility raised by the Council concerning the actions for damages brought by the individuals and companies concerned against the Euro Group. Next, as regards the first condition which must be met in order for the European Union to incur non-contractual liability pursuant to the second paragraph of Article 340 TFEU, a condition which relates to the unlawfulness of the conduct alleged against the EU institution and requires that a sufficiently serious breach of a rule of law intended to confer rights on individuals be established, it held that the individuals and companies that had brought those actions had not succeeded in demonstrating an infringement of their right to property, of the principle of the protection of legitimate expectations or of the principle of equal treatment. As the first condition for establishing non-contractual liability of the European Union was not met in this instance, the General Court dismissed the actions.

Hearing appeals brought by the Council (Cases C-597/18 P and C-598/18 P) and by the individuals and companies concerned (Cases C-603/18 P and C-604/18 P) and cross-appeals brought by the Council (in Cases C-603/18 P and C-604/18 P), the Court of Justice, sitting as the Grand Chamber, sets aside the judgments under appeal inasmuch as the General Court dismissed the pleas of inadmissibility raised by the Council in so far as those pleas relate to the actions brought by those individuals and companies directed against the Euro Group and against Article 2(6)(b) of Decision 2013/236 (2). On the other hand, it dismisses the appeals of those individuals and companies.

Findings of the Court of Justice

As regards, in the first place, the appeals brought by the Council in Cases C-597/18 P and C-598/18 P, the Court points out that, in order for the European Union to incur non-contractual liability under the second paragraph of Article 340 TFEU, there must be unlawful conduct by an ‘EU institution’, a concept which encompasses not only the EU institutions listed in Article 13(1) TEU but also all the EU bodies, offices and agencies that have been established by or under the Treaties and are intended to contribute to the achievement of the European Union’s objectives.

The Court of Justice observes that Article 2(6)(b) of Decision 2013/236 does not lay down specific rules for the implementation of that conversion, with the result that the Cypriot authorities had a significant margin of discretion in that regard, in particular for the purpose of determining the number and value of the shares to be allocated to BoC’s depositors in exchange for their uninsured deposits with that bank. Consequently, it holds that the General Court erred in law in finding that Cyprus had no margin of discretion, under that provision, for the purpose of defining the specific rules for that conversion.

So far as concerns, in the third place, the appeals brought by the individuals and companies concerned in Cases C-603/18 P and C-604/18 P, those individuals and companies contended that a sufficiently serious breach of their right to property, of the principle of the protection of legitimate expectations, and of the principle of equal treatment was attributable to the acts and conduct of the EU institutions, with the result that the first condition for the incurrence of noncontractual liability by the European Union was met.

In that regard, the Court points out, first of all, that the right to property (3) is not an absolute right and may be subject to limitations (4). It takes the view, in particular, that, as already held by it in its judgment in Ledra Advertising and Others v Commission and ECB (5), the measures referred to in the memorandum of understanding of 26 April 2013 cannot be regarded as constituting a disproportionate and intolerable interference impairing the right to property of the individuals and companies concerned.

Next, the Court holds that the fact that, during the early phases of the international financial crisis, the grant of financial assistance to other MSCE was not subject to the adoption of specific measures cannot be regarded as an assurance capable of having engendered a legitimate expectation on the part of the shareholders, bondholders and depositors of Laïki and BoC that that would also be the case in the context of the grant of the financial assistance to Cyprus.

Finally, after noting that the general principle of equal treatment requires comparable situations not to be treated differently and different situations not to be treated in the same way, unless such treatment is objectively justified, the Court hold that there is no infringement of this principle. It finds that the companies and individuals concerned were not in a situation comparable to that of the Central Bank of Cyprus, whose action is guided exclusively by public interest objectives, to that of depositors in the Greek branches of Laïki and BoC, to that of depositors in those two banks whose deposits did not exceed €100 000, to that of the depositors and shareholders of banks of other MSCE which benefited from financial assistance before Cyprus or to that of members of the Cypriot cooperative banking sector.

In conclusion, the Court dismisses in their entirety the appeals brought by the companies and individuals concerned (Cases C-603/18 P and C-604/18 P), sets aside the judgments under appeal inasmuch as the General Court dismissed the pleas of inadmissibility raised by the Council in so far as those pleas relate to the actions directed against the Euro Group and against Article 2(6)(b) of Decision 2013/236 and, giving final judgment on those pleas (6), upholds them.

Footnotes:

(1) Judgments of the General Court of 13 July 2018, K. Chrysostomides & Co. and Others v Council and Others, T-680/13, and Bourdouvali and Others v Council and Others, T-786/14 (‘the judgments under appeal’); see Press Release No 108/18.

(2) Council Decision 2013/236/EU of 25 April 2013 addressed to Cyprus on specific measures to restore financial stability and sustainable growth (OJ 2013 L 141, p. 32). That decision provides for a series of measures and outcomes with a view to correcting Cyprus’s budget deficit and to restoring the soundness of its financial system. The cross-appeals brought by the Council related specifically to Article 2(6)(b) of the decision, which states that the macroeconomic adjustment programme for Cyprus is to provide for ‘establishing an independent valuation of the assets of [BoC] and [Laïki] and quickly integrating the operations of [Laïki] into [BoC]. The valuation shall be completed quickly so as to enable the completion of the deposit-equity swap at [BoC]’.

(3) Article 17 of the Charter of Fundamental Rights.

(4) Article 52 of the Charter of Fundamental Rights.

(5) Judgment of the Court of 20 September 2016 in Joined Cases Ledra Advertising and Others v Commission and ECB, C-8/15 P to C-10/15 P; see Press Release No 102/16.

(6) Pursuant to the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union.

NOTE: An appeal, on a point or points of law only, may be brought before the Court of Justice against a judgment or order of the General Court. In principle, the appeal does not have suspensive effect. If the appeal is admissible and well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings so permits, the Court of Justice may itself give final judgment in the case. Otherwise, it refers the case back to the General Court, which is bound by the decision given by the Court of Justice on the appeal.

Unofficial document for media use, not binding on the Court of Justice. The full text of the judgment is published on the CURIA website on the day of delivery.

Source: www.curia.eu

Convention does not allow Government to use inter-State application mechanism to defend rights of legal entity that is not a “non-governmental organisation”.

In its decision in the case of Slovenia v. Croatia (application no. 54155/16) the European Court of
Human Rights has by a majority declared that it does not have jurisdiction to hear the case. This
decision is final.

The case concerned unpaid and overdue debts owed to Ljubljana Bank by various Croatian companies on the basis of loans granted at the time of the former Yugoslavia.

The Court observed that under Article 34 (individual applications) a legal entity could bring a case before it provided that it was a “non-governmental organisation” within the meaning of that Article. The idea behind this principle was to ensure that a State Party could not act as both an applicant and a respondent in the same matter.

Article 33 of the Convention (inter-State applications) did not allow an applicant Government to defend the rights of a legal entity which did not qualify as a “non-governmental organisation” and which therefore would not be entitled to lodge an individual application under Article 34.

As Ljubljana Bank was not a “non-governmental organisation” within the meaning of Article 34 it did not have standing to lodge an individual application. Accordingly, Article 33 did not empower the Court to examine an inter-State application alleging a violation of any Convention right in respect of this legal entity. The Court therefore lacked jurisdiction to hear the present case.

Principal facts

The Slovenian Government lodged an inter-State application (under Article 33 of the Convention) against the Croatian Government, alleging a series of violations of the fundamental rights of Ljubljana Bank. The bank was founded in 1955 under the laws of the then Socialist Federal Republic of Yugoslavia and reorganised in the framework of the 1989-90 reforms, later being nationalised and restructured by the Slovenian State after its declaration of independence. Most of the bank’s assets and part of its liabilities were transferred to a new bank, the New Ljubljana Bank. The old Ljubljana Bank was initially administered by the Bank Rehabilitation Agency of Slovenia and is now controlled by a Slovenian Government agency, the Succession Fund.

In the applicant Government’s submission, as its Croatian debtors had failed to repay their liabilities, Ljubljana Bank (Head Office and Zagreb Main Branch) lodged civil claims with Croatian courts, from 1991 onwards. As of 1994 over 80 such cases were pending before Croatian courts, concerning unpaid and overdue receivables from credit loans and guarantees, mainly granted to companies operating in the agricultural and food sectors of Croatia. In more than a half of all these cases, as the debtors had gone bankrupt or into liquidation, the enforcement of Ljubljana Bank’s claims had become impossible. The applicant Government added that since 2004, the Croatian courts, including the Constitutional Court, had denied the locus standi of Ljubljana Bank, as claims which it had against various Croatian companies arising from loans it had granted them in the former Yugoslavia had been transferred to the New Ljubljana Bank by the entry into force on 27 July 1994 of the 1994 Amendments to the Constitutional Act of Slovenia 1991. Thus, in those courts’ view, Ljubljana Bank had no standing to sue in order to obtain repayment of such loans.

The Court had previously established the general factual and legal background to the case in its judgments and decision in Kovačić and Others v. Slovenia, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia, and Ljubljanska Banka D.D. v. Croatia. In the latter case the Court had declared inadmissible an individual application lodged by Ljubljana Bank itself, finding that, as it did not have sufficient institutional and operational independence from the State, it was not “non-governmental” within the meaning of Article 34 of the Convention.

Complaints

The application was lodged with the European Court of Human Rights on 15 September 2016.

The applicant Government complained that the Croatian authorities had prevented and continued to prevent Ljubljana Bank from enforcing and collecting the debts of its Croatian debtors in Croatia. They alleged multiple violations of Articles 6 § 1 (right to a fair hearing), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the Convention and of Article 1 of Protocol No. 1 (protection of property). Under Article 41 of the Convention, they also requested just satisfaction corresponding to the losses incurred by Ljubljana Bank as a result of the alleged violations.

Decision of the Court

It was pointed out by the Court that the only reasons for which an inter-State application could be rejected at the admissibility stage on the basis of Article 35 (admissibility conditions) were the nonexhaustion of domestic remedies and the failure to comply with the six-month time-limit. All other grounds of inadmissibility were reserved for a later stage, to be examined jointly with the merits of the case. However, the Court was not precluded from establishing, already at the admissibility stage, under general principles governing the exercise of jurisdiction by international tribunals, whether it had any competence at all to deal with the matter before it. The Court was entitled to reject an inter-State application without declaring it admissible if it was clear from the outset that it was wholly unsubstantiated, or otherwise lacking the requirements of a genuine allegation within the meaning of Article 33 of the Convention.

The question whether the Convention as a human-rights treaty could create fundamental rights for State-owned and State-run entities went beyond the boundaries of the Convention mechanism and touched upon a general issue of international law. The main question before the Court was whether it had “jurisdiction” within the meaning of Article 32 of the Convention, and that question could be adjudicated at any stage of the proceedings.

The Court thus proceeded to address the key question raised by the case, namely whether it was able to examine an inter-State application that had been lodged by a High Contracting Party in order to protect the rights and interests of an entity which was not a “non-governmental organisation” for the purposes of Article 34 of the Convention and was therefore precluded from lodging an individual application.

Firstly, it was a well-established general principle that the Convention must be read as a whole and that its Articles should be construed in such a way as to promote internal consistency and harmony between its provisions – including the jurisdictional and procedural provisions such as those of Articles 33 and 34. The term “non-governmental organisation” thus had the same meaning and scope in both of those provisions.

Secondly, the Court emphasised the specific nature of the Convention as an instrument for the effective protection of human rights, and observed that even in an inter-State case it was always the individual who was directly or indirectly harmed and primarily “injured” by a violation of the Convention. In other words, only individuals, groups of individuals and legal entities which qualified as “non-governmental organisations” could be bearers of Convention rights, but not a Contracting State or any legal entity which had to be regarded as a governmental organisation.

Thirdly, the Court referred to the principle laid down in Cyprus v. Turkey (just satisfaction), whereby, if just satisfaction was afforded in an inter-State case, it should always be for the benefit of individual victims and not for that of the State. If the Court were to find a violation in a case brought by a State on behalf of a “governmental” entity and to award a sum of money as just satisfaction, then the final beneficiary of that sum would be the applicant State. The Court concluded that Article 33 of the Convention did not allow it to examine an inter-State application seeking to protect the rights of a legal entity which did not qualify as a “non-governmental organisation” and therefore would not be entitled to lodge an individual application under Article 34.

In the present case and having regard to all the material in the file, the Court saw no reason to depart from its findings in the Ljubljanska Banka D.D. case to the effect that Ljubljana Bank did not enjoy sufficient institutional and operational independence from the State and could not therefore be regarded as a “non-governmental organisation” within the meaning of Article 34. Accordingly, Article 33 did not empower the Court to examine an inter-State application alleging a violation of any Convention right in respect of this legal entity. The Court therefore lacked jurisdiction to hear the present case.

The decision is available in English and French.

Source: www.echr.coe.int

The General Court confirms that the rules of the International Skating Union (ISU) providing for severe penalties for athletes taking part in speed skating events not recognised by it are contrary to EU competition law

On the other hand, the Commission was wrong to dispute the ISU’s arbitration rules

The International Skating Union (ISU) is the sole international sports federation recognised by the International Olympic Committee (IOC) for the purpose of managing and administering figure skating and speed skating. The ISU also carries out a commercial activity entailing the organisation of various speed skating events in the context of the most important international competitions, such as the European and World Championships and the Winter Olympic Games.

In 2014, the Korean company Icederby International Co. Ltd sought to organise a speed skating competition involving events in a new format in Dubai (United Arab Emirates). Since the ISU had not authorised that event, that organiser found it difficult to ensure the participation of professional speed skaters, which led it to abandon its plan. Skaters affiliated to national federations that are members of the ISU are subject, under the ISU’s statutes, to a pre-authorisation system, which includes ‘eligibility rules’. By virtue of those rules, in the version applicable to that period, the participation of a skater in an unauthorised competition exposed him or her to a penalty of a lifetime ban from any competition organised by the ISU.

Having received a complaint made by two Dutch professional speed skaters, the European Commission considered, in its decision of 8 December 2017 (1) (‘the contested decision’), that the ISU’s eligibility rules were incompatible with EU competition rules (Article 101 TFEU), in so far as their object was to restrict the possibilities for professional speed skaters to take part freely in international events organised by third parties and, therefore, they deprived those third parties of the services of athletes necessary in order to organise those competitions. The Commission, consequently, ordered the ISU, subject to a periodic penalty payment, to put an end to the infringement thus found, without, however, imposing a fine on it.

The ISU brought an action against the contested decision before the General Court of the European Union. The General Court, called upon to rule for the first time on a Commission decision finding that rules adopted by a sports federation do not comply with EU competition law, confirms that the classification of a restriction of competition by object established by the Commission in respect of the rules at issue is well founded, but partially annuls the contested decision as regards the corrective measures imposed on the ISU.

Assessment of the General Court

In the first place, the General Court finds that the Commission was right to conclude that the eligibility rules have as their object the restriction of competition within the meaning of Article 101 TFEU.

In that regard, the General Court finds, first of all, that the situation in which the ISU finds itself is capable of giving rise to a conflict of interests. On the one hand, the ISU carries out a regulatory function, by virtue of which it has the power to adopt rules in the disciplines for which it is responsible, and, thus, to authorise competitions organised by third parties, while, on the other hand, in the context of its commercial activity, for its own part, it organises the most important speed skating competitions in which professional skaters must participate in order to earn their living. In that regard, the General Court considers that the obligations binding on a sports federation in the exercise of its regulatory function under Article 101 TFEU are those consistently set out in the case law relating to the application of Articles 102 and 106 TFEU (2), with the result that, in those circumstances, the ISU is required to ensure, when examining applications for authorisation, that third-party organisers of speed skating competitions are not unduly deprived of access to the relevant market, to the extent that competition on that market is distorted.

Having stated the above, the General Court then examines the Commission’s assessment concerning the content of the eligibility rules. It finds at the outset that those rules do not expressly set out the legitimate objectives pursued and have only set out authorisation criteria, which moreover are not exhaustive, since 2015. In those circumstances, the requirements applied as from that date cannot all be regarded as clearly defined, transparent, non-discriminatory and reviewable authorisation criteria, which, as such, would be capable of ensuring the organisers of competitions effective access to the relevant market. Consequently, the General Court considers that the ISU retained, including after the adoption of authorisation criteria in 2015, broad discretion to refuse to authorise competitions proposed by third parties.

Furthermore, as regards the system of penalties, the General Court stresses that the severity of the penalties provided for is particularly relevant when identifying potential obstacles to the proper functioning of competition on the relevant market. Such severity may dissuade athletes from taking part in competitions not authorised by the ISU, including where there is no legitimate reason for such a refusal to grant authorisation. In the present case, the General Court considers that the penalties provided for by the eligibility rules, even after the relaxation of the rules that took place in 2016, are disproportionate. Since that date, not only have the categories of infringements remained ill defined, but the duration of the penalties incurred, inter alia in the event of participation in unauthorised third-party competitions, have remained severe given the average length of a skater’s career.

Finally, the General Court examines the Commission’s assessment concerning the objectives pursued by the eligibility rules. In that regard, the General Court recalls that the protection of the integrity of the sport constitutes a legitimate objective recognised in Article 165 TFEU. The General Court consequently acknowledges that it was legitimate for the ISU to establish rules seeking both to avoid the risks of manipulation of competitions liable to result from sports betting and to ensure that sporting competitions meet common standards. However, in the present case, the fact remains that the rules adopted by the ISU go beyond what is necessary to achieve such objectives and, accordingly, are not proportionate to those objectives. Consequently, the Commission was fully entitled to consider that the restrictions deriving from the pre-authorisation system cannot be justified by the objectives in question.

In the light of all those considerations, the Commission was therefore right to conclude that the eligibility rules reveal a sufficient degree of harm, in particular with regard to their content, to be regarded as restricting competition by object.

In the second place, the General Court rules on the legality of the corrective measures imposed by the contested decision in order to bring an end to the infringement found and partially upholds the applicant’s claims for annulment in that regard, in so far as the Commission required, subject to a periodic penalty payment, substantial modification of the ISU’s arbitration rules in the event that the pre-authorisation system was retained.

In that regard, the General Court notes that the Commission considered that those arbitration rules, which confer on the Court of Arbitration for Sport in Lausanne (Switzerland) exclusive jurisdiction to hear appeals against ineligibility decisions and make such arbitration binding, reinforced the restrictions of competition caused by the eligibility rules. In so far as the Commission drew, in that regard, on the Guidelines on the method of setting fines, 3 and, more specifically, on the concept of an ‘aggravating circumstance’ contained therein, the General Court stresses that only unlawful conduct or circumstances which render the infringement more harmful can justify an increase in the penalty imposed for an infringement of EU competition law. In the present case, the General Court considers that there are no such unlawful circumstances. The Commission was not therefore entitled to consider that the ISU’s arbitration rules constituted an aggravating circumstance.

Footnotes:

(1) Commission Decision C (2017) 8230 final, adopted on 8 December 2017 relating to proceedings under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (Case AT/40208 — International Skating Union’s eligibility rules).

(2) Judgments of the Court of Justice of 1 July 2008, MOTOE, C-49/07 (paragraphs 51 and 52), and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C-1/12 (paragraphs 88 and 92); see also PR No 21/13).

NOTE: An appeal, limited to points of law only, may be brought before the Court of Justice against the decision of the General Court within two months and ten days of notification of the decision.

NOTE: An action for annulment seeks the annulment of acts of the institutions of the European Union that are contrary to European Union law. The Member States, the European institutions and individuals may, under certain conditions, bring an action for annulment before the Court of Justice or the General Court. If the action is well founded, the act is annulled. The institution concerned must fill any legal vacuum created by the annulment of the act.

Unofficial document for media use, not binding on the General Court. The full text of the judgment is published on the CURIA website on the day of delivery

Source: www.curia.eu

In the absence of effective judicial review, a dismissal based on Emergency Legislative Decree No. 677 was in breach of the Convention.

In today’s Chamber judgment (1) in the case of Pişkin v. Turkey (application no. 33399/18) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, and

a violation of Article 8 (right to respect for private and family life).

The case concerned Mr Pişkin’s dismissal on the grounds that he had links with a terrorist organisation, in the wake of the declaration of a state of emergency in Turkey following the failed military coup of 15 July 2016, as well as the subsequent judicial review of that measure.

Mr Pişkin complained that neither the procedure leading to his dismissal nor the subsequent judicial proceedings had complied with the guarantees of a fair trial. He also complained that he had been branded a “terrorist” and “traitor”.

The Court noted that Legislative Decree No. 667 had not only authorised the dismissal of civil servants but also required public institutions such as Mr Pişkin’s employer to dismiss civil service employees under a simplified procedure. The prior decision-making process for the termination of the employment contract had not necessitated any form of adversarial proceedings, and no procedural safeguards had been laid down in the Legislative Decree. It had therefore been sufficient for the employer to consider the employee as belonging, affiliated or linked to one of the illegal structures defined in the Legislative Decree, without any need to provide even cursory personalised reasoning.

As regards the right to a fair trial, the Court considered that the crucial question was whether Mr Pişkin’s inability to take cognisance of the reasons for his employer’s termination of his employment contract had been adequately counterbalanced by effective judicial review of the employer’s decision. The Court held in that connection that the domestic courts had not conducted any thorough or in-depth examination of Mr Pişkin’s ground of appeal, that they had not based their reasoning on the evidence presented by the applicant and that they had given no valid reasons for dismissing his arguments. Those shortcomings had thus put Mr Pişkin at a clear disadvantage vis-àvis his opponent. Despite the fact that, theoretically, the national courts had had full jurisdiction to adjudicate the dispute between Mr Pişkin and the authorities, they had declined jurisdiction to consider all the factual and legal issues relevant to the case before them, as required under Article 6 § 1 of the Convention. Finally, the Court considered that the failure to comply with the requirements of a fair trial could not be justified by the Turkish derogation (Article 15 of the Convention, derogation in time of emergency).

As regards respect for the right to private life, the Court held that Mr Pişkin’s dismissal had had serious negative consequences on his family “inner circle”, on his ability to forge and develop relationships with others and on his reputation. In particular, Mr Pişkin had been unemployed since the termination of his contract, and prospective employers did not dare offer him employment owing to the fact that his dismissal had been based on Legislative Decree No. 667. Consequently, the termination of Mr Pişkin’s employment contract had had major negative repercussions on his private life and had attained the severity threshold for the applicability of Article 8.

In the Court’s view, even in cases where national security considerations had to be taken into account, the principles of lawfulness and the rule of law applicable in a democratic society required any measure affecting an individual’s fundamental rights to be subject to some form of adversarial proceedings before a competent independent body, assessing the reasons for the impugned interference and the relevant evidence.

In the present case the national courts had failed to determine the actual concrete reasons for the termination of Mr Pişkin’s employment contract. The judicial review of the implementation of the measure had therefore been inadequate, and Mr Pişkin had not benefited from the minimum level of protection against arbitrariness required under Article 8 of the Convention. Furthermore, the impugned measure could not be deemed to have complied with the strict measure necessitated by the particular circumstances of the state of emergency.

Principal facts

The applicant, Hamit Pişkin, is a Turkish national who was born in 1982 and lives in Bingöl (Turkey).

Mr Pişkin had been working since December 2010 as an expert at the Ankara Development Agency (Ankara Kalkınma Ajansı), a public-law entity responsible for coordinating the regional activities of various public and private bodies. His permanent employment contract had been governed by the Labour Code (Law No. 4857), and his legal status had been subject to the rules of private law.

On 26 July 2020, shortly after the failed military coup of 15 July 2016, the governing board of the Ankara Agency met in order to assess the status of their employees. On the same day it decided to terminate the employment contracts of six persons, including Mr Pişkin, pursuant to Legislative Decree No. 667, considering those persons as belonging, affiliated or linked to structures posing a threat to national security.

On 14 August 2016 Mr Pişkin lodged an appeal with the Ankara Labour Court seeking the annulment of the decision to terminate his employment contract. He submitted, among other things, that his dismissal had lacked any valid reason, and that it was abusive, null and void. He further claimed compensation for his dismissal.

On 25 October 2016 the court dismissed Mr Pişkin’s administrative appeal. He then appealed, subsequently lodging an appeal on points of law, but his appeals were dismissed. He finally lodged an individual appeal with the Constitutional Court, which declared his complaints inadmissible on 10 May 2018.

On 5 September 2018 the Ankara Public Prosecutor’s Office gave a discontinuance decision on Mr Pişkin’s case, on the grounds of insufficient evidence in support of the suspicions required for commencing criminal proceedings against him.

Complaints

Relying on the civil and criminal limbs of Article 6 (right to a fair trial), Mr Pişkin submitted that neither the dismissal procedure nor the subsequent judicial proceedings had complied with the guarantees of a fair trial.

Mr Pişkin also complained that he had been dismissed on the grounds of links to a terrorist organisation, and that he had been branded a “terrorist” and “traitor”.

The Court decided to examine that complaint under Article 8 (right to respect for private and family life).

Decision of the Court

Article 6 § 1 (right to a fair trial)

Applicability of the civil and criminal limbs of Article 6

The Court considered that the civil limb of Article 6 of the Convention applied to Mr Pişkin’s dismissal procedure, which clearly concerned a civil right. Indeed, all employment disputes, especially those relating to action to terminate employment in the private sector, concerned civil rights within the meaning of Article 6 § 1 of the Convention. Moreover, even supposing that Mr Pişkin were considered as having been an employee under contract discharging duties equivalent or similar to those discharged by civil servants, the Court reiterated that according to its case-law disputes between the State and its officials in principle fell within the ambit of Article 6, unless the following two conditions were simultaneously fulfilled (2) : firstly, the State in its national law had to have expressly excluded access to a court for the post or category of staff in question; and secondly, the exclusion had to be justified on objective grounds in the State’s interest. In the instant case the first of those two conditions had not been fulfilled, because Turkish law permitted Development Agency employees to lodge appeals with the labour courts against terminations of their employment contracts. Mr Pişkin had had that option, and he had indeed availed himself of that remedy.

The Court considered that the criminal limb of Article 6 of the Convention was inapplicable to the present case, since the dismissal procedure had not amounted to a criminal charge under the “Engel” criteria (3).

Procedure for terminating the employment contract

The procedure used for terminating Mr Pişkin’s employment contract had stemmed directly from the derogating measures adopted during the state of emergency. During that period the Council of Ministers, meeting under the chairmanship of the President of the Turkish Republic, had adopted 37 legislative decrees (nos. 667 to 703). Among those texts, Legislative Decree No. 667 had not only authorised the dismissal of civil servants but also required public institutions such as Mr Pişkin’s employer to dismiss civil service employees under a simplified procedure. The prior decision-making process concerning the termination of Mr Pişkin’s employment contract had not necessitated any form of adversarial proceedings. Likewise, the Legislative Decree had not laid down any procedural safeguards. It had been sufficient for the employer to consider the employee as belonging, affiliated or linked to one of the illegal structures defined in the Legislative Decree, without any need to provide even cursory personalised reasoning.

On that subject, the Court was prepared to accept that Legislative Decree No. 667 had been adopted in order to facilitate the immediate dismissal under simplified procedure of civil servants and other civil service employees who had clearly been involved in the failed military coup of 15 July 2016. As the Venice Commission (4) had rightly pointed out, “any action aimed at combating the conspiracy would not be successful if some of the conspirators are still active within the judiciary, prosecution service, police, army, etc.” (5) . Such a procedure might be deemed justified in the light of the very particular circumstances of the state of emergency.

However, the Court attached importance to the fact, in particular, that the legislative decree in question had placed no restrictions on the judicial review to be exercised by the domestic courts after the termination of the employment contracts of the persons concerned, such as the applicant in the instant case. Indeed, the latter had been able to contest the impugned termination decision before the labour court, to appeal against that court’s decision before the Regional Court and to lodge an appeal on points of law; and in fact he had also lodged an individual appeal with the Constitutional Court.

Thus the Court considered that the crucial question arising in the present case was whether Mr Pişkin’s inability to have cognisance of the reasons which had led his employer to terminate his employment contract, on account of the alleged existence of links with a terrorist organisation, had been adequately counterbalanced by effective judicial review.

The judicial review

The Court noted that since Mr Pişkin had not benefited from any procedural safeguards during the procedure for the termination of his employment contract, his only recourse had been to apply to the national courts for factual or other evidence capable of justifying his employer’s assessment. That was the only channel through which the applicant could contest the verisimilitude, the truth and the reliability of the evidence in question. Accordingly, it had been incumbent on the courts to examine all these factual and legal questions relevant to the case before them in order to afford the litigant concerned, namely Mr Pişkin, effective judicial review of the employer’s decision. In the Court’s view, that was the central issue of the case.

The national courts had thus been called upon to adjudicate on the legal basis for the impugned termination of contract and on the factors capable of justifying the employer’s assessment that Mr Pişkin had links with an illegal structure. However, they had merely considered whether the dismissal had been decided by the relevant body and whether the decision had had a basis in law. Neither the legal regime of termination “with a valid reason” nor the question whether the employer had been in possession of any fact possibly justifying such grounds of dismissal, that is to say the alleged existence of links with an illegal structure, had ever really been discussed by the domestic courts. More specifically, at no stage in the proceedings before the different trial benches had the domestic courts considered the question whether the termination of the applicant’s employment contract for presumed links with an illegal structure had been justified by his conduct or any other relevant evidence or information. Furthermore, it did not transpire from the dismissal decisions given by the trial courts that Mr Pişkin’s arguments had ever been carefully considered.

As for the Constitutional Court, it could have played a fundamental role at the national level in protecting the right to a fair trial and remedying the breaches noted above. However, by giving a summary inadmissibility decision, the latter had failed to conduct any analysis of the legal and factual issues in question.

The judicial decisions given in the instant case did not demonstrate that the domestic courts had conducted an in-depth, thorough examination of Mr Pişkin’s arguments, that they had based their reasoning on the evidence presented by the latter and that they had validly reasoned their dismissal of his challenges. The shortcomings noted above had put the applicant at a distinct disadvantage vis-à-vis his opponent. Consequently, whereas the domestic courts had theoretically held full jurisdiction to determine the dispute between Mr Pişkin and the administrative authorities, they had deprived themselves of jurisdiction to examine all questions of fact and law relevant to the dispute before them, as required by Article 6 § 1 of the Convention.

The derogation provided for in Article 15 of the Convention (derogation in time of emergency)

As regards the derogation provided for in Article 15, the Court noted that Legislative Decree No. 667 had placed no restrictions on the judicial review to be exercised by the domestic courts following the termination of the employment contracts of those concerned, such as the applicant in the instant case. The Court also pointed out that even in the framework of a state of emergency, the fundamental principle of the rule of law had to prevail. It would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims should be capable of being submitted to a judge for an effective judicial review – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons.

Accordingly, in view of the seriousness of the consequences for the Convention rights of those persons, where an emergency legislative decree such as the one at issue in the present case did not contain any clear or explicit wording excluding the possibility of judicial supervision of the measures taken for its implementation, it had always to be understood as authorising the courts of the respondent State to exercise sufficient scrutiny so that any arbitrariness could be avoided. In those circumstances, the failure to observe the requirements of a fair trial could not be justified by the Turkish derogation.

There had therefore been a violation of Article 6 § 1 of the Convention.

Article 8 (right to respect for private and family life)

Applicability of Article 8

Firstly, the Court noted that the domestic courts had at no stage referred to the criminal investigation, and, moreover, that the case file contained nothing to indicate that that investigation or the proceedings before the domestic courts concerning Mr Pişkin’s dismissal had enabled the national authorities to obtain information or factual evidence capable of substantiating the grounds of dismissal. The Court concluded that there was absolutely no evidence to suggest that the termination of the employment contract in question had been the foreseeable consequence of the applicant’s own actions.

Secondly, the Court noted that Mr Pişkin’s dismissal had had serious negative consequences for his “inner circle”, for his ability to forge and develop relationships with other people, and for his reputation. The applicant had lost his job, that is, his means of subsistence. Moreover, he stated that he had been unemployed since the termination of his contract, and that employers did not dare offer him a job because the termination had been based on Legislative Decree No. 667. Furthermore, the grounds of dismissal adopted, that is to say the existence of links with an illegal structure, had undoubtedly had very serious consequences for the applicant’s professional and social reputation.

Consequently, the termination of Mr Pişkin’s employment contract had had severe negative repercussions on his private life and had exceeded the threshold of severity for Article 8 to be applicable to the case.

Existence and justification of an interference

The Court considered that Mr Pişkin’s dismissal had been based on a provision of Emergency Legislative Decree No. 667, which had required employers to terminate their employees’ contracts if they considered that the latter had had links with an illegal structure. Consequently, the impugned dismissal might be regarded as an obligation deriving from the said legislative decree, which had far exceeded the legal framework governing Mr Pişkin’s employment contract. Accordingly, the dismissal, based on his alleged links with an illegal structure, could be considered as an interference in Mr Pişkin’s right to respect for his private life.

Having regard to the circumstances of the state of emergency and the fact that the domestic courts had held full jurisdiction to review measures adopted pursuant to section 4 (1) (g) of Emergency Legislative Decree No. 667, the Court was prepared to proceed on the assumption that the impugned interference was prescribed by law. It then noted that that interference had pursued several legitimate aims for the purposes of Article 8 § 2 of the Convention, that is to say the protection of national security and the prevention of disorder and crime.

As regards the necessity of the interference in a democratic society, the Court’s scrutiny concerned two points: (1) whether the decision-making process leading to the applicant’s dismissal had been surrounded by safeguards against arbitrary action; and (2) whether the applicant had benefited from procedural guarantees, and in particular whether he had had access to adequate judicial review, and whether the authorities had acted diligently and promptly.

As regards the first point, the Court observed that the decision-making process preceding the termination of the applicant’s employment contract had been very cursory. Following a meeting on 26 July 2016 aimed at assessing the situation of the employees working for the Ankara Agency, it had been decided to terminate the employment contracts of six employees, including the applicant, pursuant to section 4 (1) (g) of Emergency Legislative Decree No. 667, on account of their membership of structures threatening national security or of the existence of links or connections with such structures. The Court noted the vagueness and uncertainty of that affirmation, and concluded that the decision taken by the Agency’s governing board had been substantiated by a mere reference to the wording of section 4 (1) (g) of Emergency Legislative Decree No. 667, which provided for dismissing employees considered as belonging, affiliated or linked to an illegal structure.

The Court then observed that the applicant’s employer had failed to specify the nature of the applicant’s activities potentially justifying the assessment that he had links with an illegal structure. During the proceedings before the domestic courts, no concrete accusation had been explicitly levelled concerning the alleged existence of links with such a structure. It transpired from the Government’s observations that the applicant had been dismissed on account of his voluntary involvement in activities linked to terrorist organisations. Similarly, it transpired from the domestic courts’ decisions that the applicant’s employer’s assessment had concerned the alleged existence of links between the applicant and the FETÖ/PDY organisation (6) . In short, the applicant had been dismissed on the grounds that he had links with an illegal secret structure which the national authorities considered as having instigated the failed military coup of 15 July 2016.

The Court could accept, in keeping with its findings under Article 6, that the simplified procedure established under Legislative Decree No. 667 enabling civil servants and other civil-service employees to be dismissed might have been considered as justified in the light of the very specific circumstances of the situation in the wake of the failed military coup of 15 July 2016, given that the measures taken during the state of emergency had been subject to judicial review. Consequently, it considered that no further assessment was required of the procedure in question in view of the above-mentioned circumstances.

As regards the second point, that is, the thoroughness of the judicial review of the impugned measure, the Court reiterates the principle that any individual subject to a measure for reasons of national security must have safeguards against arbitrary action.

The Court was prepared to accept that membership of structures organised along military lines or establishing a rigid, irreducible form of solidarity among their members, or else pursuing an ideology contrary to the rules of democracy, a fundamental element of “the European public order”, could raise an issue vis-à-vis national security and prevention of disorder where the members of such bodies were called upon to discharge public duties.

In the Court’s view, the assessment by the public authorities or other bodies operating in the civil service sphere of what posed a threat to national security would naturally be of significant weight. Nevertheless, the domestic courts should be able to react in cases where invoking that concept had no reasonable basis in the facts or pointed to an arbitrary interpretation.

In the present case, the Court was in no real position to adjudicate on the domestic authorities’ assessments which had formed the grounds for the applicant’s dismissal. Indeed, even though that measure had been based on the alleged existence of links between the applicant and an illegal structure, the Government had merely referred to the judicial decisions given by the domestic courts. Those decisions had shed no light on the criteria that had been used to justify the employer’s assessment and to determine the exact nature of the charges against Mr Pişkin. The domestic courts had accepted that the employer’s assessment had been a valid reason for ordering the termination of his employment contract, without thoroughly assessing the impugned measure and despite the major repercussions of the latter on the applicant’s right to respect for his private life.

In the Court’s view, even where national security was at stake, the concepts of lawfulness and the rule of law in a democratic society required that measures affecting fundamental human rights be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence. Were it impossible to contest effectively a national security concern relied on by the authorities, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention.

Under those circumstances, the Court considered that in the instant case the domestic courts had failed to determine the real reasons why the applicant’s employment contract had been terminated. Consequently, the judicial review of the impugned measure in the present case had been inadequate.

The Court therefore concluded that Mr Pişkin had not benefited from the minimum degree of protection against arbitrary interference required by Article 8 of the Convention. In addition, for the reasons set out in its review under Article 6, it considered that the impugned measure could not be said to have been strictly required by the special circumstances of the state of emergency.

There had accordingly been a violation of Article 8 de la Convention.

Just satisfaction (Article 41)

The Court held, by a majority, that Turkey was to pay the applicant 4,000 euros (EUR) in respect of non-pecuniary damage.

The judgment is available in English and French.

Footnotes:

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

(2) See Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 II.

(3) See Engel and Others v. the Netherlands, 8 June 1976, § 82-83, Series A no. 22.

(4) The Council of Europe’s European Commission for Democracy through Law (the Venice Commission).

(5) Opinion on Emergency Legislative Decrees Nos. 667 to 676, adopted following the failed military coup of 15 July 2016 (CDL=AD(2016)037))

(6) FETÖ/PDY (“Fetullahist Terrorist Organisation/Parallel State structure”), considered by the Turkish authorities as an armed terrorist organisation, having planned the military coup of 15 July 2016.

Source: www.echr.coe.int

The applicants, Sergey Alekseyevich Lushkin, Svetlana Nikolayevna Lushkina, Aleksandr Vladimirovich Nagulov, and Olga Kuzminichna Nagulova, are Russian nationals who were born in 1962, 1962, 1950 and 1955 respectively and live in Murmansk Region (Russia). They are two married couples.

The case concerned an order for the applicants’ eviction from tied accommodation.

Mr Lushkin and Mr Nagulov served in the military. As a result, they and their partners lived in tied accommodation in a closed town from the 1980s onwards. On retirement in the late 1990s they lost the right to live in the closed town. In 2006 they took part in a programme run by the municipality and funded by the State to resettle them elsewhere. The municipality built via a private company a block of flats in the Leningrad Region, subsequently transferring the ownership rights over the flats in that block of flats to the applicants. In exchange the applicants undertook to vacate their old flats. However, the relevant State authority refused to register the applicants as the owners on the grounds that the block of flats had been built without planning permission.

In 2009 and 2011 the applicants’ ownership was recognised by the courts.

In 2011, in a judgment in abuse-of-office proceedings, the construction of the new flats and the tendering process were found to have been unlawful, while the applicants’ rights were adjudged to have been violated in that they couldn’t move to the new flat.

In 2013 the municipality brought eviction proceedings against the applicants. The Polyarnyy District Court of Murmansk Region ordered that the applicants leave within six months, which was upheld on appeal. The Supreme Court refused to hear a cassation appeal lodged by the applicants.

The enforcement of the judgment was postponed once by the District Court, which refused to postpone it further in 2014. The applicants are still in their old flats.

Relying on Article 8 (right to respect for the home) of the European Convention on Human Rights, the applicants complained that the eviction order had breached their rights.

Violation of Article 8

Just satisfaction: 5,000 euros (EUR) to Mr Lushkin and Mrs Lushkina jointly and EUR 5,000 to Mr Nagulov and Mrs Nagulova jointly in respect of non-pecuniary damage.

Under Articles 43 and 44 of the Convention, Chamber judgments are not final. During the three-month period following a Chamber judgment’s delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Under Article 28 of the Convention, judgments delivered by a Committee are final. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: http://www.coe.int/t/dghl/monitoring/execution – _blank

Source: www.echr.coe.int

The General Court declares the action brought by Mr Junqueras i Vies, against the statement by the European Parliament that his seat was vacant, to be inadmissible

The President of the European Parliament did no more than inform that institution of a pre-existing legal situation that was brought about exclusively by decisions of the Spanish authorities

By judgment of the Tribunal Supremo (Supreme Court, Spain) delivered on 14 October 2019, Mr Oriol Junqueras i Vies was sentenced to thirteen years imprisonment and disqualified from holding office for the same period, whereby he lost all his existing public posts and duties, including those to which he had been elected, and was barred from obtaining or holding further such posts or duties. The charges brought against him included participation in a process of secession as Vice-President of the Gobierno autonómico de Cataluña (Autonomous Government of Catalonia, Spain) when a referendum on self-determination was held there. In the course of the criminal proceedings which led to that judgment, Mr Junqueras i Vies was elected as a member of the European Parliament on 26 May 2019, that result being announced by the Spanish Central Electoral Commission in a decision of 13 June 2019. However, since Mr Junqueras i Vies was not permitted to take the oath to respect the Spanish Constitution, as required of those elected to the European Parliament by national law, his seat was declared vacant by that commission, in a decision of 20 June 2019 (1). Mr Junqueras i Vies therefore did not attend the first session of the European Parliament, which commenced on 2 July 2019.

By judgment of 19 December 2019 (2), the Court of Justice answered questions referred to it by the Tribunal Supremo concerning the immunity provided for in the Protocol on the privileges and immunities of the European Union (3) (4). On 20 December 2019 Ms Diana Riba i Giner, Member of the European Parliament, made a request to the President of the European Parliament that he urgently take measures, on the basis of Rule 8 of the Rules of Procedure of the European Parliament, to assert the immunity of Mr Junqueras i Vies.

By decision of 3 January 2020, the Spanish Central Electoral Commission declared Mr Junqueras i Vies ineligible to hold office, due to his having been sentenced to a period of imprisonment. Mr Junqueras i Vies made an application to the Tribunal Supremo for the suspension of enforcement of that decision.

By order of 9 January 2020, the Tribunal Supremo gave a ruling on the effects of the judgment of the Court of Justice of 19 December 2019 on the criminal proceedings concerning Mr Junqueras i Vies. The Tribunal Supremo held that there was no reason to permit Mr Junqueras i Vies to travel to the place of meeting of the European Parliament, or to permit his liberation, or to set aside the judgment of 14 October 2019, or to send a request to the Parliament for a waiver of parliamentary immunity. The Tribunal Supremo also decided to notify the Central Electoral Commission and the European Parliament of that order. The Tribunal Supremo observed that, when Mr Junqueras i Vies had been declared elected, the criminal proceedings brought against him were concluding and the court was considering its verdict. Accordingly, since Mr Junqueras i Vies had acquired the status of Member of the European Parliament when those proceedings had already reached the trial phase, he could not rely on any immunity to impede the continuation of those proceedings.

In its plenary session of 13 January 2020, the President of the European Parliament stated that that institution took note, further to the judgment of the Court of Justice of 19 December 2019, of the election to the European Parliament of Mr Junqueras i Vies with effect from 2 July 2019. Further, he stated that, given the decision of the Central Electoral Commission of 3 January 2020 and the order of the Tribunal Supremo of 9 January 2020, the European Parliament found his seat to be vacant with effect from 3 January 2020.

Mr Junqueras i Vies then brought, before the General Court of the European Union, an action seeking the annulment, first, of the declaration of 13 January 2020, and second, the purported rejection by the President of the European Parliament of the request of 20 December 2019 by Ms Riba i Giner that he urgently take measures to assert the immunity of M. Junqueras i Vies (5).

By its order today, the General Court dismisses the action of Mr Junqueras i Vies as being inadmissible.

The European Parliament has asked the General Court to give a ruling on the inadmissibility of the action without consideration of its merits. The General Court holds that it has sufficient information from the documents in the file to do so without continuing the proceedings.

The European Parliament submits that the statement of 13 January 2020, on the one hand, and the purported rejection of the request of 20 December 2019 by Ms Riba i Giner, on the other, are not acts having an adverse effect which may form the subject matter of an action for annulment.

First, as regards the statement of 13 January 2020, the General Court observes that the European Parliament has no competence to review the decision of the authorities of a Member State declaring an individual to be ineligible to hold office as a member of the European Parliament under national law and the resulting decision that the seat is vacant, since the institution is merely informed of that vacancy by the national authorities. The General Court adds that nor does the European Parliament have the power to refuse to take account of the decision of national authorities declaring that vacancy.

Accordingly, at the plenary session of 13 January 2020, the President of the European Parliament did no more than inform that institution of a pre-existing legal situation that was brought about exclusively by decisions of the Spanish authorities. Given that the statement of 13 January 2020 was purely informative, that statement may not, therefore, form the subject matter of an action for annulment.

Further, the General Court recalls that the verification of compliance, by the national authorities, with procedures laid down by national law and EU law does not fall within the competence of the European Parliament, but rather within the competence of the Spanish courts and, as the case may be, the Court of Justice where infringement proceedings are brought before it.

Second, as regards the purported rejection of the request of 20 December 2019 by Ms Riba i Giner, the General Court states that in reality annulment is sought of a non-existent act, and consequently the claims for annulment directed against the purported rejection must be dismissed as being inadmissible. That is because the request of 20 December 2019 of Ms Riba i Giner was neither expressly nor implicitly rejected by the President of the European Parliament. In the view of the General Court, the lack of an express response to that request does not constitute an implicit decision rejecting that request, since, in this instance, there is no time limit on the expiry of which an implicit decision is to be deemed to have been made, and there are no exceptional circumstances from which the existence of such an implicit decision can be inferred.

The General Court adds that, in any event, the measures that the President of the European Parliament may take on the basis of Rule 8 of the Rules of Procedure of that institution constitute opinions that are not binding on the national authorities to whom they are addressed. Further, it is apparent from Rule 8 that the President of the European Parliament is in no way obliged to take measures to assert the immunity of a member of the European Parliament and that the President has a discretion in that regard, even where that member has been arrested or has had his or her freedom of movement curtailed in apparent breach of his or her privileges and immunities. That discretion precludes Mr Junqueras i Vies having any right to insist that the President of the European Parliament take, as a matter of urgency, measures to assert his immunity.

Footnotes:

(1) For a more detailed account of the facts, see Press Release No 139/19.

(2) Judgment of 19 December 2019, Junqueras Vies, C-502/19 ; see Press Release No 161/19.

(3) Protocol (No 7) on the privileges and immunities of the European Union, annexed to the EU and FEU Treaties (OJ 2012 C 326, p. 266) (‘the Protocol’).

(4) The Court held that a person who had been officially declared elected to the European Parliament while subject to a measure of provisional detention in the context of proceedings in respect of serious criminal offences, but who had not been permitted to comply with certain requirements under national law following such a declaration and to travel to the European Parliament in order to take part in its first session, had to be regarded as qualifying for immunity under the Protocol. The Court added that that immunity entailed that the measure of provisional detention imposed on the person concerned had to be lifted, in order to enable him to travel to the European Parliament and complete the necessary formalities there. The Court stated, last, that if the competent national court considered that that measure should be maintained after the person concerned acquired the status of Member of the European Parliament, it ought as soon as possible to request that institution to waive that immunity.

(5) He also brought an application for interim measures, which was dismissed by order of 3 March 2020 of the Vice-President of the General Court (Case T-24/20 R, Junqueras i Vies v Parliament, see Press Release No 24/20). On 8 October 2020, the Vice-President of the Court of Justice dismissed the appeal brought by Mr Junqueras i Vies against that order (order of 8 October 2020, Junqueras i Vies v Parliament, C-201/20 P (R), see Press Release No 131/20).

NOTE: An appeal, limited to questions of law, may be brought before the Court, against the decision of the General Court, within two months and ten days from its notification.

NOTE : An action for annulment seeks to annul acts of the institutions of the Union which are contrary to EU law. Under certain conditions, Member States, European institutions and individuals can bring an action for annulment to the Court of Justice or the General Court. If the action is well founded, the act is annulled. The institution concerned must remedy any legal vacuum created by the annulment of the act.

Unofficial document for media use, not binding on the General Court. The full text of the order is published on the CURIA website.

Source: www.curia.eu

The Supreme Administrative Court of Lithuania has asked (1) the European Court of Human Rights to provide an advisory opinion on impeachment legislation, a question which is at issue in a case currently pending in Lithuania.

Lithuania is the fourth country to seek such an opinion under Protocol No. 16 to the European Convention on Human Rights. France made the first request in October 2018 and the Court delivered its opinion, on rights related to surrogacy, in April 2019. Armenia made the second request in August 2019, concerning an Article of the country’s Criminal Code which penalises the overthrowing of the Constitutional order, and the Court delivered its opinion in May 2020. Slovakia recently submitted a request concerning the independence of its police complaints mechanism.

Protocol No. 16 allows the highest courts and tribunals, as specified by member States which have ratified it, to request advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the European Convention or its Protocols.

The Supreme Administrative Court of Lithuania stated that its request was made in the context of a case brought by a former member of the Seimas (the Lithuanian parliament) who had been impeached and was running for election again in 2020. In the case the former member of the Seimas brought a complaint about the Central Electoral Commission’s (“the CEC”) refusal to register her as a candidate in elections to the Seimas following a Constitutional Court ruling of 2014 finding that she had breached the oath and grossly violated the Constitution by failing to attend many sittings of the Seimas.

In particular according to her the CEC decision failed to take into account the legislation on impeachment as amended following the European Court’s judgment in the case of Paksas v. Lithuania of 2011, the Constitutional Court having subsequently found that the new legislation was in conflict with the Constitution. In the Paksas judgment the Court held that the permanent and irreversible disqualification of a former President from taking a seat in the Seimas following impeachment proceedings had been disproportionate, in violation of the European Convention. In its questions, the Supreme Administrative Court has asked for guidance from the European Court on the criteria to be applied when assessing the compatibility of the legislation on impeachment, as currently applied, with Article 3 of Protocol No. 1 (right to free elections) to the European Convention.

An advisory opinion may only be requested in the context of a case pending before the domestic courts. The acceptance or refusal to examine the request is at the Court’s discretion. A panel of five judges decides whether to accept the request, giving reasons for any refusal.

Advisory opinions, given by the Grand Chamber, give reasons and are not binding. Opinions are published and communicated to the requesting court or tribunal and to the relevant High Contracting Party. Judges are entitled to deliver a separate opinion. The panel and the Grand Chamber include ex officio the judge elected in respect of the High Contracting Party to which the requesting court or tribunal pertains.

Footnotes:

(1) The request, initially submitted on 2 October 2020, was completed on 5 November 2020 and was thus formally considered to have been lodged on the latter date.

The aim of Protocol No. 16 is to enhance interaction between the Court and national authorities and thereby reinforce the implementation of Convention rights and freedoms by requesting courts in their adjudication of pending cases.

Source: www.echr.coe.int

Detention of Swedish refugee in Slovakia for extradition to Russia unlawful.
In today’s Chamber judgment (1) in the case of Shiksaitov v. Slovakia (application no. 56751/16) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 5 § 1 (right to liberty and security) and 5 § 5 (enforceable right to compensation) of the European Convention on Human Rights.

The case concerned the alleged unlawfulness of the applicant’s arrest and detention with a view to his extradition to Russia, despite his having refugee status in Sweden. The Court found in particular that the applicant’s arrest and the individual detention orders had complied with Slovak law and the Convention. However, the overall length that the applicant had been held had been overlong and the grounds for his detention had ceased to be valid, breaching his rights. The Court also found that the applicant had not had an enforceable right to compensation for the above breach.

Principal facts

The applicant, Hamzat Shiksaitov, is a Russian national who was born in 1982 and lives in Alvesta (Sweden).

On 12 July 2007 an international arrest warrant for the applicant was issued by a court in the Chechen Republic in Russia. He was alleged to have committed acts of terrorism. In 2011 the applicant fled from Ukraine to Sweden, fearing extradition from the former. He was granted asylum in Sweden. In 2015 the applicant was arrested in Slovakia en route to Ukraine as he was on Interpol’s international watch list.

The Košice Regional Court ordered the applicant’s preliminary detention until the circumstances surrounding his status in Sweden could be determined. That decision was upheld following an interlocutory appeal and later by the Constitutional Court, which also stated that his rights had not been infringed.

On 23 February 2015 the applicant was placed in detention pending extradition to Russia. The applicant lodged an interlocutory appeal, arguing that Slovakia was bound by the Swedish courts’ decision on his refugee status. That appeal was dismissed by the Supreme Court, a decision later confirmed by the Constitutional Court.

On 8 September 2016 the applicant’s extradition to Russia was ordered. The Regional Court noted, in particular, that refugees did not automatically enjoy immunity from prosecution (because the applicant was wanted for a serious non-political crime in this case) and that it was satisfied with the general guarantees given by the Russian authorities.

The Constitutional Court then dismissed a constitutional complaint by the applicant. They remitted the case to the lower-level to establish whether the applicant should have been excluded from being accorded the status of refugee.

The Supreme Court later overturned the decision of 8 September 2016 and ordered the applicant’s release on 2 November 2016. The border police expelled the applicant to Sweden.

Decision of the Court

The applicant argued that his arrest had not been in compliance with Slovak law, in particular the Police Corps Act and the Code of Criminal Procedure. He argued that as Russia had not requested his detention, and as he had been a refugee in Sweden, his preliminary detention and detention pending extradition should not have been ordered.

The Court reiterated that deprivation of liberty must be “lawful”. However, compliance with national law is not sufficient; the decision must be taken in good faith, and for the grounds given, and detention must not be too long. In particular, detention related to extradition must be reasonably considered necessary.

The Court was satisfied that the applicant’s preliminary arrest had been lawful, as the Slovak authorities could not have been aware of the applicant’s status in Sweden.

Likewise, the Court considered that the applicant’s preliminary detention had been lawful, despite the lack of a request from the Russian authorities, as in Slovakia preliminary detention only had to be ordered by a prosecutor.

Regarding the applicant’s detention pending extradition, the Court agreed with the domestic courts that that detention had not been fundamentally proscribed, as the Swedish authorities’ decisions had not been binding on Slovakia. Furthermore, it was acceptable for the Slovak authorities to have examined the applicant’s case thoroughly, especially given that the Swedish authorities had not checked his status with Interpol. Overall, the applicant’s detention had been justified by the need to keep him in Slovakia with a view to determining whether there had been any legal or factual impediments to the applicant’s extradition.

Overall the applicant’s detention had lasted one year, nine months and eighteen days. This is despite the fact that the authorities had had information concerning the applicant’s status in Sweden and his prosecution in Russia from a very early stage and that nothing had prevented the courts from reaching a final decision on the admissibility of the applicant’s extradition much earlier than they in fact had done.

In the light of the above, the Court concluded that the authorities had not acted with diligence, and the grounds for the applicant’s detention had ceased to be valid. This had led to a violation of Article 5 § 1 of the Convention.

The Court also judged that the applicant had not had an enforceable right to compensation for his unlawful detention, in violation of Article 5 § 5.

Just satisfaction (Article 41)

The Court held that Slovakia was to pay the applicant EUR 1,200 in respect of non-pecuniary damage and EUR 8,000 in respect of costs and expenses.

The judgment is available only in English.

Footnotes:

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Source: www.echr.coe.int

Proceedings before the administrative courts following the imposition of financial penalties by an administrative entity complied with the Convention.

In today’s Chamber judgment (1) in the case of Edizioni Del Roma Societa Cooperativa A.R.L. and Edizioni del Roma S.R.L. v. Italy (application no. 68954/13) the European Court of Human Rights held, unanimously, that there had been:

no violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

These two cases concerned the financial penalties imposed by the Italian Communications Regulatory Authority (Autorità per le garanzie nelle comunicazioni – “AGCOM”) on the applicant companies, which operated in the publishing field. As a result of these penalties, the companies lost the public funding on which they had relied, which led to the collapse of one of them.

The Court considered that the proceedings before AGCOM did not satisfy all of the requirements of Article 6 of the Convention, particularly with regard to equality of arms between the prosecution and the defence and the holding of a public hearing, which would have allowed for an oral confrontation. However, the administrative courts – the regional administrative court and the Consiglio di Stato – had been able to review whether, in the special circumstances of the case, AGCOM had made appropriate use of its powers, and been able to examine the merits and proportionality of its choices.

Principal facts

The first applicant, Edizioni Del Roma Società Cooperativa A.R.L., is an Italian cooperative society, and the second applicant, Edizioni Del Roma S.R.L., is an Italian limited liability company (S.R.L.).

The department for information and publications in the Prime Minister’s Office (DIP), which awards grants to publishing companies, asked AGCOM to inform it of the position (on the register of telecommunications operators) of publishing houses which were applying for grants, and to check whether there existed any situation of controlled or affiliated companies within the meaning of Article 2359 of the Civil Code.

On 7 March 2011 AGCOM opened proceedings against the companies for a breach, over the period 2008-2010, of the obligation to declare a situation of control, in accordance with section 1 § 8 of Law No. 416 of 1981. The companies had access to the case file, and hearings were held on 2 and 11 May 2011.

On 30 May 2011 AGCOM issued an order, imposing on the second applicant company an administrative penalty amounting to 103,300 euros, on the grounds that it had failed to declare that it had exercised control over the applicant companies during the period 2008-2010, and that it had therefore acted in breach of section 8 § 1 of Law No. 416 of 1981.

In two separate appeals, the applicant companies lodged an action with the Rome Administrative Court to challenge AGCOM’s decision.

By a judgment of 25 June 2012, the Rome Regional Administrative Court dismissed these appeals, having ordered the joinder of the two appeals.

The applicant companies appealed against this judgment, challenging the dismissal of their appeals against the penalty imposed on them by AGCOM. In a judgment of 22 April 2013, the Consiglio di Stato dismissed the appeal lodged by the applicant companies. The Consiglio di Stato also dismissed the applicant companies’ complaints concerning the Administrative Court’s interpretation of the “situation of control”.

Lastly, in a judgment delivered on 26 March 2016, the Rome Criminal Court acquitted the directors of the two applicant companies of the offence of fraud, holding that it had not been for the purpose of obtaining the grants in question for the periods 2008/2009 and 2009/2010 that the companies had hidden a situation of control.

Decision of the Court

Article 6 § 1

The Court noted that, in the context of the proceedings before AGCOM, the applicant companies had been given the opportunity to submit evidence in their defence. However, the report by the revenue police on the investigative measures, based on which the relevant AGCOM committee had taken its decision, had not been communicated to the applicant companies, and they had thus not had an opportunity to defend themselves in relation to the document ultimately submitted by AGCOM’s investigatory bodies to that committee, which was responsible for ruling on the merits of the accusations. The Court also noted that the procedure before AGCOM was essentially a written one, as no public hearing was provided for.

Although the obligation to hold a hearing was not absolute and there could be proceedings in which an oral hearing was not necessarily required under Article 6, the Court considered that a public hearing, open and accessible to the applicant companies, had been necessary in the present case. The facts were contested, especially with regard to whether there existed a situation of control of one applicant company over the other, and, quite apart from their financial severity, the penalties which the applicant companies were liable to incur were likely to adversely affect their professional honour and reputation.

The Court noted that AGCOM’s regulations provided for a certain separation between the investigatory bodies and the committee responsible for ruling on whether or not there had been a breach of the rules and for imposing sanctions. In particular, it is the person in charge of the procedure who draws up accusations and conducts the investigation, while the final decision on imposing penalties lies solely with the committee.

It was nevertheless the case that the person in charge of the procedure and the committee were merely branches of the same administrative body, acting under the authority and supervision of a single chairperson. In the Court’s opinion, this situation amounted to the consecutive exercise of investigative and judicial functions within one body; in criminal matters such a combination of functions was not compatible with the requirements of impartiality set out in Article 6 § 1 of the Convention.

The Court therefore considered that the proceedings before AGCOM did not satisfy all of the requirements of Article 6 of the Convention, particularly with regard to equality of arms between the prosecution and the defence and the holding of a public hearing which would have allowed for an oral confrontation.

With regard to whether the applicant companies had had access to a court with full jurisdiction, the Court noted that the finding that the proceedings before AGCOM did not comply with the principles of a fair hearing were not sufficient to warrant the conclusion that there had been a violation of Article 6.

In the present case, the applicant companies had been able to appeal to the Rome Regional Administrative Court against the contested penalty and to lodge a further appeal against that court’s decision with the Consiglio di Stato. As hearings had been held publicly before these two courts, an oral confrontation between the parties and compliance with the principle of equality of arms had been possible. The Court reiterated that, under its case-law, the Rome Regional Administrative Court and the Consiglio di Stato satisfied the requirements of independence and impartiality so as to constitute a “tribunal” for the purposes of Article 6 of the Convention.

The Court therefore noted that the administrative courts’ jurisdiction was not merely confined to reviewing lawfulness. The administrative courts had been able to review whether, in the special circumstances of the case, AGCOM had made an appropriate use of its powers. They had been able to examine the merits and proportionality of AGCOM’s choices.

As AGCOM’s decision had been subsequently reviewed by judicial bodies with full jurisdiction, it followed that there had been no violation of Article 6 § 1 of the Convention.

The judgment is available only in French.

Footnotes:

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

Source: www.echr.coe.int