Newsletter N. 4 | June 2020

Dear Project Partners, dear Fellows,
In this fourth issue of the FRICoRe Newsletter, we are glad to propose to you:

• A summary of the project progress
• A presentation of the COVID-related FRICoRe initiatives
• A conversation with State Council Judge Sandra Lange

1. A summary of the project progress.

Over the past few months, the FRICoRe Project consolidated a number of previous achievements.

First and foremost, the project saw the expansion of the European Network of National Judges and Legal Experts engaged in reporting domestic case law addressing access to justice and protection of fundamental rights in the five project areas (consumer protection, migration and asylum, data protection, health law, non-discrimination). Following the latest memberships, the Network boasts now 30 members overall, coming from 23 institutions of 14 different EU Member states.

The table below shows the current structure of the Network, which remains always open to new members. Do not hesitate to contact us for more information on how to join.

The active involvement of the Network in view of the first FRICoRe workshop has been pivotal in particular in updating the training materials with national case law showing the modes of implementation of the EU decisions in different Member states. In addition, the continuous support of the Network's members, as well as the valuable cooperation of project collaborators and fellows, proved once again crucial in feeding the FRICoRe Case-law Database with new cases.

The online Database, freely accessible from the project website, currently collects 137 cases sorted by reference Member state, principles applied, areas of law and further research criteria. In particular, the collection at the moment includes 66 cases in the field of consumer protection, 39 on migration and asylum, 37 on data protection and 1 on health law. Each category will continue to be enriched with new cases in the coming months, with particular reference to those concerning health law and non-discrimination which will be updated in conjunction with the organization of the related training events.

The development of a stable network of relationships across Europe and, thanks to these, a wide set of training tools and materials, made it possible the successful organization of the first FRICoRe Transnational Training Workshop (TTW).

The training event, which brought together 41 trainees from 19 different EU Member states, took place at the Universitat Pompeu Fabra, Barcelona, on 3rd and 4th February 2020. The theme “Fundamental Rights and Effective Consumer Protection: the Role of Judges Between Old and New Scenarios”was addressed within three sessions dedicated to “Unfair terms, ex officio powers and contract integration”, “Individual v. Collective action redress” and “ Consumer protection and online platforms”, respectively. In accordance with the project methodology, each session saw the combination of roundtables and working groups aimed at discussing practical cases. A final discussion panel was also dedicated to the analysis of the theme "Consumer protection in the digital environment: the way forward".

More information on the workshop programme is available here.

In order to promote the active participation of all trainees, a set of training materials, including in particular the Casebook "Effective Consumer Protection and Fundamental Rights" and the collection of hypothetical cases which would be discussed during the practical sessions, has been circulated before the workshop itself.

The participants, who were asked to evaluate the contents and organization of the workshop by filling in questionnaires distributed at the end of the event, rated the training event with an overall average score of 5,5 out of 6.

The success of the first FRICoRe workshop would not have been possible without the tireless work of the team of the Pompeu Fabra University, host partner in Barcelona, to whom our sincere thanks go.

The second FRICoRe TTW "Data Protection and Fundamental Rights: the New Paradigms for Judicial Practice", originally scheduled for 26th and 27th March in Warsaw, has been postponed on account of the health emergency. Updates on this and other scheduled training events will be provided in the next newsletter.

2. A presentation of the COVID-related FRICoRe initiatives.

The exceptional measures taken by governments worldwide to limit the spread of the COVID-19 outbreak are resulting in unprecedented restrictions of fundamental rights .

As a European project on the protection of fundamental rights, FRICoRe cannot refrain from considering how national courts across the EU are facing the multiple challenges and balances posed by the ongoing health crisis. For this reason, a special working group has been set up with the aim to gather and gain insights into the national case law concerning the protection of fundamental rights affected by major restrictions across Europe.

The working group is currently composed of the following judges: Fabrizio Cafaggi (Council of State, Italy), Sandra Lange (Council of State, the Netherlands), Raffaele Sabato (European Court of Human Rights), Bostjan Zalar (Administrative Court of the Republic of Slovenia; European Chapter of the International Association of Refugee and Migration Judges – IARMJ), Markus Thoma (Austrian Supreme Administrative Court), Jacek Chlebny (Supreme Administrative Court of Poland), William McKechnie (Supreme Court of Ireland), Diana Ungureanu (Court of Appeal Pitesti, Romania), Enrique Sanjuan (Court of Appeal in Malaga, Spain), Aranzazu Ortiz (Court of Appeal in Mallorca, Spain), Maria Cristina Contini (Tribunal of Milan, Italy); other judges are in the process of joining the group. We are honoured to be able to count on their invaluable support and we want to take advantage of this newsletter to thank each and every one of them once again.

Participation in the group is open to all those interested in joining. We would be pleased to answer your requests for more information in this regard.

In the list below it is possible to find the main areas addressed by the newly established working group, as well as some of the most relevant judgments collected so far. 

• Health and Freedom of movement of people, goods and capital
  • Italy, Council of State (Consiglio di Stato), 7 aprile 2020, opinion n. 735.
• Health and data protection
• Health and education
• Health and freedom of association/public gathering
• Health and freedom of expression
• COVID-19 and access to healthcare
• Health and immigration
  • Netherlands, Council of State (Raad van State), 8 April 2020, no. 201907322/1, 201907435/1, and 202001915/1;
  • France, Council of State (Conseil d’Etat), 27 March 2020, no. 439720;
  • France, Court of Appeal of Toulouse, 17 March 2020, no. 20/00271.
• Health and industrial relations
• Health and freedom to conduct a business
• Sanctions and violations
  • Romania, Constitutional Court (not yet published – press release).
• COVID-19 and judicial proceedings (including the right to be heard in court)
  • Netherlands, Council of State (Raad van State), 7 April 2020, no. 202001949/1/V3 and 202002016/1/V3;
  • France, Council of State (Conseil d’Etat), 3 April 2020, no. 439894, No. 439877, 439887, 439890 and 439898;
  • France, Council of State (Conseil d’Etat), 10 April 2020, no. 439903.
• Health and consumer law
  • Italy, Competition Authority (AGCM), 17 March 2020, n. 28173 (unfair commercial practice, drug “Kaletra” – coronavirus.it).
• Further relevant judgments
  • Netherlands, The Hague District Court, 3 April 2020, case no. C-09-590052-KG ZA 20-249 (request for full lockdown).
  • France, Conseil Constitutionel, no. 2020-800 DC, 11 May 2020 (measures concerning participation in parliamentary debates).
  • United Kingdom, Court of Protection, 25 March 2020, case no. 1352489T (right to health of people with disabilities).
  • Ireland, High Court, 13 May 2020, [2020] IEHC 209, 2020 271 JR (constitutionality of legislation and regulations enacted to arrest the spread of the virus).
  • Slovenia, Constitutional Court, 16 April 2020, case U-I-83/20-10 (constitutionality of the Covid-19 Government Decree).

The case law selected with the help of the new working group will contribute to updating a specific "COVID chapter" to be included in the FRICoRe Casebook on Health Law. The contents of this Casebook will be presented on the occasion of the transnational training workshop on Health Law in Trento (dates will be rescheduled and communicated as soon as possible).

In addition, a dedicated section on COVID-19 and fundamental rights will be launched on the project website in the coming weeks. The new section, named “COVID-19 Litigation”, will collect both the relevant case law suggested by the working group and further materials, with special reference to legislation, regulation and soft law, issued in the fields mentioned above. Overall, the section will host materials concerning all EU Member States, in addition to those issued by the EU institutions themselves; attention will also be devoted to the United Kingdom.

3. A conversation with State Council Judge Sandra Lange.

Judge Lange is a member of the Administrative Jurisdiction Division of the Dutch Council of State and was previously a member of the Dutch Central Appeals Tribunal for social security and the civil service. She currently deals with cases on asylum law, environmental law, urban law, construction law. She has been one of the most active participants in the European judicial training projects, engaged in building the bridge between the judiciary and the academia to foster judicial dialogue between national and European Courts. She has always been in the forefront of European law and the relevance of fundamental rights. She clerked for Judge Kapteyn at the European Court of Justice and has been very committed to the integration of EU law in national legal systems. She is currently a member of the Committee of the rights of European Union of the Council of State. Her contribution to the FRICORE and before to the REJUS project has focused on the role of fundamental rights and particularly article 47 of the Charter in many domains from consumer to asylum law. She took a leading role in promoting exchanges between national judges on the relevance of fundamental rights, discussing the reasons of resistance and the opportunities to overcome them. FRICORE project is privileged to include Judge Lange among the participants in its activities. We are grateful to Sandra Lange for accepting to be interviewed and talk about the relationship between EU and national law and the role of the judiciary in time of Covid Crisis.

Q1:      You have been involved in this European project about fundamental rights from the beginning. First the REJus projects led by Fabrizio Cafaggi and now the follow up project FRICoRe led by Paola Iamiceli. Why do you think these initiatives are so important?

A:        I have been a judge for twenty years now and I dealt with all kinds of cases in civil, criminal and administrative law. It struck me early on what a challenge it is for many judges to actually apply European law. For various reasons. There may be resistance against the influence of European law on their familiar own national laws or there is fear of the complexity of European law. Procedural rules might be standing in the way of applying European law. And it is often quite a puzzle how to actually integrate European law in the national legal order in a concrete case. At the same time European law is supra national law which simply has to be applied in cases when invoked. And sometimes even ex officio. Why is this so important?

The judiciary plays a vital role in the success of the so called “European Project”. The European Union is the most successful peace project in human history and has even been awarded the Nobel Peace Prize. After World War II we never wanted to experience a war like that ever again. In later years the EU evolved into a trading power, with economic and political influence to be taken into account on the world stage. Interesting in that regard are the findings of Anu Bradfort in her book “The Brussels Effect, How the European Union Rules the World”. The member states have to combine forces within the EU if they want to cope with the big challenges of our time in areas such as environmental protection, consumer health and safety and data privacy. So the importance of the “European Project” cannot be overstated. But the right of its existence stands or falls with the protection it can actually offer to the European citizens. For example: you can make European rules to protect consumers. But if those consumers cannot invoke those rights in court and actually profit from them, those rights are empty shells. The institute that provides those rules, will then lose its legitimacy and credibility. Here comes the role of the judiciary into play. In the European Trias Politica the judges in all the member states have the essential role to offer adequate protection in upholding these “European rights” and provide effective remedies. These are the fundamental rights, as stipulated in articles 6 and 13 of the ECHR and article 47 of the EU Charter. Without the judges in the member states taking on this important role in the European rule of law, the “European Project” will be at risk.

As we speak COVID 19 is threatening us all. We are now going through the biggest crisis since World War II. Everything is under pressure: healthcare, education, economy, jobs, jurisdictions, even democracies. Fundamental rights were written for times like these and the institutions upholding these rights are now put to the test. These challenges will undoubtedly call for all our efforts and ingenuity. Mutual trust and loyal cooperation, also within the judiciaries, are now of the essence in order to find a sensible way out of this crisis. If we can succeed in upholding the fundamental rights in this time of crisis, the European project will come out stronger than ever. It is essential that we do so with respect for each other’s roles within the European rule of law and with compassion and solidarity for our fellow European citizens.

So yes, I think projects such as FRICoRe are important. They provide a platform to judges, scientists and legal practitioners from all the member states to exchange best practices and knowledge on how fundamental rights can be applied in the different legal orders, to work closely together on solutions and in doing so to build on mutual trust and understanding. I always enjoy participating in the various workshop and get a lot of energy from the commitment of all the participants to make the “European Project” work. 

Q2.      How did COVID 19 affect the role of the judiciary in the Netherlands? Have there been judgements applying article 47 of the EU Charter and the fundamental right to fair trial and effective remedy? And about the principle of proportionality and the balancing between health and free movement?

A:        In the Netherlands the COVID 19 outbreak has led to exceptional measures, one being the closure of the Courts as of 17 March 2020. Next week the courts are gradually reopening again, with all kinds of precautionary measures in place to avoid contamination. During the past two months most cases were postponed or, if possible and if permission was given, dealt with without a hearing. In administrative law cases fortunately most processes are already digitized. We communicate with our colleagues at home through Teams and e-mail. So it’s possible to settle those cases in writing at home behind our computers. Under the pressure of the crisis the introduction of some innovations was accelerated, such as the digital signature of the judge. However, a hearing is in some cases or instances mandatory. And it did not take long before the first appeals on the fundamental right to be heard by a judge were submitted.

For instance in an immigration law case of a foreign national, who appealed against his detention. In a judgment of 7 April 2020 the Administrative Jurisdiction Division of the Council of State in the Netherlands ruled on this matter (ECLI:NL:RVS:2020:991). In the Netherlands anyone whose imprisonment is not based on an order of a judge can ask the judge in court to be released. The right to be heard is also part of the ‘right of defence’ enshrined in the EU Charter and the ECHR. Another important aspect of the defence rights is the right to an effective remedy (Articles 5, 6 and 13 of the ECHR, as well as Article 47 of the EU Charter). In principle a detention measure is unlawful from the moment a foreign national has not been heard n time. However, according to European jurisprudence the fundamental right to be heard is not absolute. Fundamental rights, including the right to be heard, may be limited if those restrictions (1) are foreseeable, (2) genuinely meet the public interest objectives pursued by the measure and, (3) are proportionate and do not affect the core of the fundamental right. In this case the Division ruled that a temporary solution to settle a case in writing is acceptable, if the Court has received permission from both the appellant and the State Secretary thereto. In case both parties agree that only the authorized representatives, such as advocates and lawyers, are heard by telephone, the Division ruled that this is also a temporarily acceptable hearing method. In case either one of the authorized representatives or the foreign national states that he does not waive the right to be heard by the Court, the Court must make every effort to offer the foreign national the opportunity to hear him in person. The Court may, however, conclude that a hearing is not possible in a particular case. The Court is then faced with the question what the consequence is of this decision, given the current exceptional circumstances. According to the Division, the Court must assess the practical (im)possibilities to hear the foreign national, in close connection to other fundamental rights at stake (such as the right to an early decision on the lawfulness of the detention measure, the right to privacy, and the right to health of both the foreign national and the general importance of public health). The Division concluded that refraining from hearing a foreign national is possible given the special circumstances of the COVID 19 crisis, but this cannot happen automatically. The Court must make a recognizable and individual assessment of all the interests involved.

Q3:      How do you think the FRICoRe project can contribute to upholding the fundamental rights during the COVID 19 crisis?

A:        When this project started in 2019, there was obviously no sign of any virus leading to the crisis we are in now. Already the focus of this project, and its predecessors, was on article 47 of the EU Charter, the role of the judge in providing adequate protection and effective remedies in the different areas of law. Not knowing then how important this topic would become under the COVID 19 crisis. Now the FRICoRe team started a working group of judges and scientists from the different member states collecting judgments in COVID 19 related cases. Judgments like the one I described earlier on. It would be great if by means of the FRICoRe project judges and scientists in the member states can be brought together to join forces in order to uphold the fundamental rights in the EU during the COVID 19 crisis. All the help is very welcome. So please do contact the FRICoRe team if you have an interesting judgement in a COVID 19 related case. In doing so we can share those cases and come up with ideas and solutions to prevent breaches of fundamental rights such as the right to access to justice. Hopefully we can help and facilitate each other in finding solutions for dealing with the COVID 19 crisis. And at the same time build on mutual trust, understanding and loyal cooperation.

We thank you for your attention and remain at your disposal for more information on the FRICoRe project and its activities.

Kind regards,
The FRICoRe Coordination Team