Decided cases:

Cases C-585/18, C-624/18 and C-625/18 A.K. v Krajowa Rada Sądownictwa, and CP and DO v Sąd Najwyższy

EU Member State: Poland

Date of Decision: 19 November 2019

The CJEU was asked to ascertain whether the new Disciplinary Chamber of the Polish Supreme Court is independent in order to determine whether the chamber has the jurisdiction to rule on cases where judges of the Supreme Court have been retired or whether another court should decide on these cases.

The Grand Chamber of the Court of Justice held that the right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union and reaffirmed, in a specific field, by Directive 2000/78, precludes cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal.

There are legitimate doubts as to whether the court, given its characteristics and the means by which its members have been appointed, is impervious to external factors, in particular the influence of the legislature and the executive and neutrality with respect to the interests before it.

The primacy of EU law requires the referring court to disapply the provision of national law which reserved exclusive jurisdiction to the Disciplinary Chamber to decide in cases on the retiring of judges of the Supreme Court, so that those cases may be examined by a court that meets the requirements of independence and impartiality.

The Grand Chamber made two points to note:

1. The fact that the judges of the Disciplinary Chamber were appointed by the President of the Republic does not give rise to a relationship of subordination to political authorities. Rather, regard must be had as to the way the members are appointed and the way the body actually exercises its role of ensuring the independence of the court and judiciary; and


2. Although when the factors are examined in isolation they are not necessarily capable to calling into question the independence of that chamber, that may not be true when they are taken together.


Case C-233/18 Haqbin

EU Member State: Belgium

Date of Decision: 12 November 2019

The Grand Chamber of the Court of Justice ruled on the scope of the right conferred on Member States by Article 20(4) of Directive 2013/33 to determine the sanctions applicable when an applicant for international protection is guilty of serious breaches of the rules of the accommodation centre in which he or she is hosted or guilty of seriously violent behaviour.

The provision read in light of Article 1 of the Charter of Fundamental Rights of the European Union, does not allow Member States to impose a sanction consisting in the withdrawal, even temporary, of material reception conditions relating to housing, food or clothing in respect of the applicant.

In this case the applicant for international reception was an unaccompanied minor. The court held that any sanctions in Article 20(4) must be, in accordance with Article 20(5) of the directive, objective, impartial, motivated and proportionate to the particular situation of the applicant and must, under all circumstances, ensure a dignified standard of living.

The withdrawal, even temporary, of the full set of material reception conditions would be irreconcilable with the requirement to ensure a dignified standard of living for the applicant and would not meet the basic needs of the applicant and would amount with failure to comply with proportionality requirements.

Where the applicant is an unaccompanied minor, and therefore a vulnerable person within the meaning of the directive, the national authorities must when imposing sanctions take increased account of the particular situation of the minor and the principle of proportionality. The sanctions must be decided in accordance with Article 24 of the Charter of Fundamental Rights and take account of the best interests of the child.


Case T-48/17 Alliance for Direct Democracy in Europe (ADDE) v Parliament

Date of Decision: 7 November 2019

Alliance for Direct Democracy in Europe (ADDE), a political party at European level dominated by the UK Independence Party, was granted a maximum grant of €1,241,725 for the 2015 financial year by the Parliament’s Bureau. In November 2016, the Parliament declared a sum of € 500,615.55 to be ineligible and requested ADDE to reimburse the sum of € 172,654.92. Furthermore, in December 2016 the Bureau of the Parliament stipulated that pre-financing would be limited to 33% of the maximum amount of the grant, conditional on the presentation of a bank guarantee, in view of the fact, that ADDE’s financial viability had been called into question in the absence of its own resources.

ADDE argued that these two decisions should be annulled because of the fact that the Parliament Bureau does not contain a single representative of the ‘Eurosceptic’ parties and is unable to ensure the impartial and objective control of the funds allocated to European political parties. In addition, a member of the Bureau of Parliament made public statements before the decision relating to the 2015 financial year that demonstrated her hostility and lack of impartiality towards ADDE.

The General Court held that the comments created an inference that the member of the Bureau had prejudged the issue before the contested decision relating to the 2015 financial year was adopted. This seriously impacted on the appearance of impartiality. Therefore, the court annuls the decision relating to the 2015 financial year.

The General Court also examined the decision regarding the limiting of pre-financing to 33% of the total grant together with the requirement for a bank guarantee and held that Parliament does have the power to require a bank guarantee and to limit the financial risk to the EU connected with pre-financing, taken regarding the 2017 financial year. Therefore, the decision relating to the 2017 financial year would not be annulled.


Advocate General Opinions:

Cases C-502/19 Junqueras Vies

EU Member State: Spain

Date of Opinion: 12 November 2019

Oriol Junqueras Vies was Vice-President of the Autonomous Government of Catalonia on 1 October 2017, when the referendum on self-determination was held. Criminal proceedings were brought against Mr Junqueras Vies, in which he was accused of having taken part in a process of secession. Mr Junqueras Vies has been held on remand since 2 November 2017.

On 26 May 2019, Mr Junqueras Vies was elected a Member of the European Parliament. On 14 June 2019, Mr Junqueras Vies was refused permission to leave prison by the Spanish Supreme Court in order to take an oath to respect the Spanish Constitution, as those elected to the European Parliament are required to do under national law.

As a result, the electoral commission declared the seat of Mr Junqueras Vies to be vacant and suspended. A list of MEPs elected in Spain, which did not include the name of Mr Junqueras Vies, was sent to the European Parliament.

Mr Junqueras Vies claims that he has immunity from these requirements as a result of the Protocol on the privileges and immunities of the EU (Protocol (No 7)).

The opinion of Advocate General Maciej Szpunar highlights the constitutional importance of the case, which looks at the division of the remits of EU law and national law. The AG observed that the status of MEPs, as directly elected representatives of EU citizens and Members of a European institution, may be governed only by EU law.

The parliamentary mandate may be acquired solely from the electorate and cannot be conditional on any subsequent formality. An oath to respect the Spanish Constitution is not a step in the process for election to the European Parliament in Spain. Even before the inaugural session of the European Parliament after the elections, the national authorities in that Member States must refrain from any measure which might obstruct the necessary steps of that Member to take up his/her duties.


Case C-752/18 Deutsche Umwelthilfe

EU Member State: Germany

Date of Opinion: 14 November 2019

The Freistaat Bayern refuses to comply with a German judicial decision to introduce traffic bans on vehicles on certain roads in Munich where the nitrogen dioxide limit values set by the directive on air quality (Directive 2008/50) had been exceeded for many years to a considerable extent.

The referring court asked the Court of Justice whether the national court’s obligation under EU law to take “all necessary measures” to ensure that the directive is complied with may include an obligation to deprive public officials of their liberty.

Advocate General Henrik Saugmandsgaard Øe observed that there may be limits in practice to the full effectiveness of EU law and the right to liberty as provided for in the Charter of Fundamental Rights provides such a limit.

The AG concludes that even supposing that an order to detain individuals would achieve the desired outcome, namely compliance with the nitrogen dioxide values- the achievement of this outcome seems to be far from certain- to make such an order against public officials would be contrary to the fundamental right to liberty, in the absence of a clear and foreseeable law for that purpose. It would be a matter for the national legislature to provide such a clear and foreseeable law.


Upcoming cases:


C-493/18 Tiger and Others

Member State: France

Date of Judgement: 04 December 2019

Question referred by the French Court:

Questions referred

Does the action brought by a trustee in bankruptcy appointed by the court of the Member State which opened the insolvency proceedings, seeking a declaration that mortgages registered over immovable property of the debtor located in another Member State and the sale of that immovable property in that State are ineffective as against the trustee, with a view to the restitution of those assets to the debtor’s estate, derive directly from the insolvency proceedings and is it closely linked to them?

If so, do the courts of the Member State in which the insolvency proceedings were opened have exclusive jurisdiction to hear and determine the action brought by the trustee in bankruptcy or, on the contrary, do the courts of the Member State in which the immovable property is located alone have jurisdiction for that purpose, or is there concurrent jurisdiction between those various courts, and, if so, under what conditions?


Can the judgment by which the court of the Member State which opened the insolvency proceedings authorises the trustee in bankruptcy to bring, in another Member State, an action falling, in principle, within the jurisdiction of the court which opened the proceedings, have the effect of imposing the jurisdiction of that other State, in so far as, inter alia, that judgment could be classified as a judgment concerning the course of insolvency proceedings within the meaning of Article 25(1) of Regulation [No 1346/2000] 1 which may, on that basis, be recognised with no further formalities, pursuant to that article?


C-398/18 and C-428/18 Bocero Torrico Bode

Member State: Spain

Date of Judgement: 05 December 2019

Question referred by the Spanish Court:

Question referred

Must Article 48 TFEU be interpreted as meaning that it precludes national legislation which requires as a condition for access to an early retirement pension that the amount of the pension to be received must be higher than the minimum pension which would be due to the person concerned under that same national legislation, the term ‘pension to be received’ being interpreted as the actual pension from the competent Member State (in this case, Spain) alone, without also taking into account the actual pension which that person may receive through another benefit of the same kind from one or more other Member States?


C-564/18 Bevándorlási és Menekültügyi Hivatal (Tompa)

Member State: Hungary

Date of Opinion: 05 December 2019

Question referred by the Hungarian Court:

Question referred

May the provisions on inadmissible applications in Article 33 of Directive 2013/32/EU, on common procedures for granting and withdrawing international protection (recast) (‘the Procedures Directive’), be interpreted as not precluding a Member State’s legislation pursuant to which an application is inadmissible in the context of the asylum procedure when the applicant has arrived in that Member State, Hungary, via a country where he is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed?

May Article 47 of the Charter of Fundamental Rights of the European Union and Article 31 of the Procedures Directive — having regard also to the provisions of Articles 6 and 13 of the European Convention on Human Rights — be interpreted as meaning that a Member State’s legislation complies with those provisions when it lays down a mandatory time limit of eight days for the administrative-law proceedings before a court in respect of applications declared inadmissible in asylum procedures?