EU Constitutional Law

Reference for a preliminary ruling: Questions on the effectiveness of arbitration agreements in light of EU law

Decision of the German Federal Court of Justice (Bundesgerichtshof) – I ZB 2/15

The case concerned is about the Slovak Republic as an applicant which has become since 01.01.1993 successor of Czechoslovakia. It seeks the annulment of an arbitral award which a Dutch insurance group as a respondent has obtained against it. The appeal states that the prohibition imposed on the Member States to use, in disputes with EU law relevance, other procedures than those provided in the Union Treaties, comprises all disputes involving a Member State regarding the application and the interpretation of the European Union law.

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ECJ: preliminary ruling does not give grounds for the disqualification of the national court

JUDGMENT OF THE ECJ (Grand Chamber) 5 July 2016, ECLI:EU:C:2016:514

By judgment of 28 November 2012, Mr. O., a Bulgarian national, was convicted of murder and aggravated theft by a Danish court and sentenced to a cumulative fifteen years imprisonment. After having served part of his sentence of imprisonment in Denmark he was handed over to the Bulgarian authorities to serve the remainder of his sentence in Bulgaria.

By a request for a preliminary ruling, of 25 November 2014 brought in Case C‑554/14, repeated and thereafter supplemented by two requests of 15 December 2014, the Sofia City Court referred to the Court various questions on the interpretation of Council Framework Decision 2008/909/JHA of 27 November 2008 .

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Case C-160/14 Ferreira da Silva and others – a more lenient approach towards the acte clair doctrine?

By Iliya Tsikalov

In its preliminary ruling given on September 9th 2015 pursuant to a reference by the Court of First Instance, Lisbon (Varas Civeis de Lisboa)[1] the Court of Justice of the European Union (CJEU) elaborated on the notion of ”transfer of a business” in light of Directive 2001/23 and in that respect also dwelled on the obligation of the Portuguese Supreme Court to refer the question to the CJEU for a preliminary ruling.

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The withdrawal of the right of residence after false declarations to the Belgian authorities

Conseil d’État (Council of State) – n° 230.579 – 19 March 2015 (Bensada Benallal)

In this case, a citizen of the EU had his right of residence withdrawn after having made false declarations to the Belgian authorities. He accuses the authorities of not having heard him prior to the contentious decision. In its ruling on the appeal in cassation on a decision handed down by the Conseil du Contentieux des étrangers (Council for Alien Law Litigation), the Conseil d’État reiterated that the CJEU had indicated, in essence, in its ruling C-249/13, 11 December 2014, Khaled Boudjlida, that an individual’s right to be heard by a national authority before the adoption by this authority of any decision that is likely to affect that individual’s interests adversely, forms an integral part of the respect for the rights of the defence as recognised by a general principle of EU law.

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Spanish National High Court (AN): Right to be forgotten on the Internet

Audiencia Nacional (National High Court) – Roj: SAN 5211/2014 – nº de Recurso: 220/2011 – 29 December 2014

 In its ruling dated 29 December 2014, the Audiencia Nacional (National High Court) established the criteria relating to the recognition of the right to be forgotten Directive 95/46/EC, as a result of the Google Spain ruling. The administrative dispute chamber of the Audiencia Nacional (National High Court) thus recognized, in accordance with the said ruling of the Court of Justice, the right to request the removal from the list of results displayed after a search performed using a person’s name, links to web pages published by third parties and containing personal information.

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The French Council of State confirmed that persons perpetrating terrorism may be deprived of their French (and respectively EU) citizenship

Conseil d’État, 2ème et 7ème sous-sections réunies, 11/05/2015, 383664

The present case concerns the conditions under which an individual may be stripped of nationality.
A Moroccan national acquired French nationality. Later he was condemned for terrorism. The Prime Minister issued a decree withdrawing the French nationality.
The person concerned lodged an action for annulment on the grounds of ultra vires.
By a judgment of 31st October 2014 the Supreme Court (Conseil d’Etat) seised the Constitutional court (Conseil constitutionnel) in order to examine if the withdrawn of nationality, previewed by Articles 25 and 25-1 of the French Civil Code, was compatible with the French Constitution. The Constitutional court (Conseil constitutionnel) validated the legislation by taking into consideration different elements – cases of nationality withdrawal were restrictively enumerated, procedure of withdrawing might be intended only upon a determined time limit, a person should be not left stateless. The particular gravity of terrorism activity was also taken into account.

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The French Constitutional Council rules on the question concerning the forfeiture of nationality

Constitutional Council, decision dated 23.01.15, Ahmed S., QPC 2014-439

In a decision dated 23 January 2015, the Constitutional Council, hearing a priority preliminary ruling on constitutionality concerning the compliance with the Constitution of the provisions of the Civil Code regarding forfeiture of nationality of naturalised French persons perpetrating terrorism, considered that the said provisions were not unconstitutional and that it was not within its jurisdiction to pass a preliminary question to the EU Court of Justice to assess the compliance of these provisions with the principles of equality and non-discrimination enshrined in Articles 20 and 21 of the Charter and Article 18 of the TFEU.

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Return of a child to his country of habitual residence in a case of clear child abduction

L (Grave Risk of Harm) (Child’s Objections) [2015] EWHC 3300 (Fam) (16 November 2015)

In this case, where a father seeks the return of his son to his country of habitual residence (Bulgaria), the main issues for determination under Article 13 of the Convention on the Civil Aspects of International Child Abduction 1980 are whether a return of the child (L) to Bulgaria would expose him to a grave risk of psychological or physical harm or otherwise place him in an intolerable situation and whether L objects to returning to Bulgaria, and has attained an age and degree of maturity at which his views should be taken into account.

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The French Council of State used the humanitarian clause (Article 17 of the ”Dublin III” EU Regulation) and granted asylum to a Kosovo family

Conseil d’État, Juge des référés, 29/01/2015, 387329

The present case concerns the admission of foreign nationals seeking asylum.
A family originated from Kosovo arrived in France and lodged an application seeking asylum. French authorities found out that, a few months earlier, they have sought asylum in Hungry. According to the ”Dublin II” rule Hungry was the State competent to grant asylum. for this reason, the prefect of Aveyron (préfet de l’Aveyron) refused the right of residence to the family (decree from 12.11.14) and ordered their surrender to the Hungarian authorities (decree from 12.12.14). In order to secure the surrender, the prefect also ordered a house arrest. The family referred the matter to the Administrative court of Toulouse (Tribunal administratif de Toulouse) which suspended the litigated decree under interim procedure.
The Minister of Home Affairs lodged an appeal before the Supreme Court (Conseil d’Etat) which rejected the claim.

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