Fundamental Rights Law

Cautious openness: The Spanish Constitutional court’s approach to EU law in recent national case law

By Mario García

In recent months, the Spanish Constitutional Court (SCC) has issued a series of decisions related to EU law that show an interesting combination of both openness toward the European legal order and a certain degree of apprehension to the growing role of the Court of Justice of the European Union (CJEU) in constitutional matters. In these cases the SCC has arrived at fairly pro-EU results: the SCC decided that preliminary references from Spanish courts to the CJEU take precedence over constitutional questions submitted to the SCC, and that a non-transposed, directly-effective EU Directive can be taken as a factor in the interpretation of a constitutional provision. But, as discussed below, the details subtly suggest that the SCC does not fully agree with the ways in which the CJEU has asserted its institutional position, and prefers to avoid potential conflicts in the future.

The full text is available on Еuropeanlawblog

 

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The French Court of cassation (Cour de cassation) applied the principle of equality to social contributions paid in Monaco

Cour de cassation, civile, Chambre civile 2, 9 mars 2017, 16-10.851, Publié au bulletin

In the present case, the Court of cassation (Cour de cassation) had to apply the principle of equality of treatment concerning old-age pension under Article 45 TFEU, Article 34 of the EU Charter of fundamental Rights and recital 5 of Regulation (EC) No 883/2004.

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The French Council of State found burkini ban illegal

Conseil d’État, Juge des référés, formation collégiale, 26/08/2016, 402742

ECLI:FR:XX:2016:402742.20160826

The human rights league (Ligue des droits de l’homme) and the Association for the Defence of Human Rights- Organisation against Islamophobia in France (Association de défense des droits de l’homme – Collectif contre l’islamophobie en France) lodged a claim with the urgent applications judge of the Administrative court of Nice (Tribunal Administratif de Nice) for an order suspending the implementation of Article 4.3 of the decree of the Mayor of Villeneuve-Loubet.

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The Administrative court of appeal of Marseille ruled that contractual public and private agents could be subject to different remuneration conditions

(CAA de MARSEILLE, 9ème chambre – formation à 3, 27/05/2016, 15MA02698, Inédit au recueil Lebon)

In the present case, the Administrative court of appeal of Marseille (Cour administrative d’appel de Marseille) had to decide on the issue concerning the violation of Directive 2000/78/EC, of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Charter of fundamental rights of the European Union (CFR).

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The need for examination and assessment of the safety situation in Afghanistan before ordering the return of the person entitled to a subsidiary protection

Austrian Constitutional Court (Verfassungsgerichtshof) E2002/2014

The complaint of the claimant, an Afghan national, is exclusively against the non-recognition of his entitlement to a subsidiary protection (granted when there are real risks of possible violations of Article 2 and 3 of the ECHR or Protocols 6 and 13 of the ECHR) with respect to his home state Afghanistan and, in this connection, against the referral of the case back to the Federal Agency for Asylum for the examination of the admissibility of the order for return.

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The French Council of State regulated the auctioneer profession by posing strict diploma conditions

Conseil d’État, 6ème / 1ère SSR, 17/04/2015, 373589, Inédit au recueil Lebon

The present case concerns the access to professional activities and the requirements related to professional qualifications.

A French decree introduced the Article R.321-18 into the French Commercial Code providing that auctioneer’s activity might be exercised only by persons possessing legal diploma, diploma in Art studies or diploma in Archaeology. Two professional organisations brought an action for annulment before the Supreme Court (Conseil d’Etat).

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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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A Belgian court ruled on freedom of expression and respect for private and family life

Liège Court of Appeal, ruling dated 25.09.14, 2013/GR/393

Belgium Protection of individuals with regard to processing of personal data – Respect for privacy and family life – Freedom of expression – Balancing these two fundamental rights – Posting of archives of a daily online – Right to be forgotten of a person having been the subject of a news article – Non-contractual liability of the daily editor*

In its ruling dated 25 September 2014, the Liège Court of Appeal was called upon to settle a dispute between a doctor who caused, when drunk, a serious road accident in 1994, and a daily that had implemented since 2008, free access on its website to all of its articles published since 1989, including the electronic version of an article from the time of the accident caused by the doctor and stating the facts of that accident, for which the doctor had been convicted in criminal proceedings. The name of the doctor, who was the subject of a rehabilitation decision in 2006, was explicitly mentioned therein.

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