Newsletter N .5 | November 2020

Dear Project Partners, dear Fellows,
we are delighted to share with you all the fifth issue of the FRICoRe Newsletter.

The FRICoRe Project is a three-year judicial training project, launched on 1 February 2019, aimed at providing judges and legal practitioners from across the EU with guidelines and tools for the effective protection of fundamental rights based on the Charter of Fundamental Rights of the European Union, EU law and general principles. Special attention is devoted to the right to an effective remedy and a fair trial enshrined in Article 47 CFREU. All training activities and materials are built on the analysis of the judicial dialogue between national and European Courts, with a focus on the area of consumer law, data protection, immigration and asylum, non-discrimination and health law, as well as on a cross-sectoral perspective covering the five main project areas.

In this issue, we are pleased to provide you with more information on:

• The updated calendar of FRICoRe events
• An overview of the Transnational Training Workshop on Non-Discrimination
• An update on the ReJus-FRICoRe Database and the Covid-19 Litigation Database

1. The Rescheduling of the Project Workshops.

As you know from the previous newsletter, the health emergency caused the postponement of the FRICoRe workshops scheduled from spring 2020 onwards. Following the overall rescheduling, we are pleased to present the new calendar of all the training events to be held throughout the project.
The new schedule includes both Transnational Training Workshops (TTWs), intended for 40 participants each, selected among judges and lawyers, and Transnational "Training the Trainers" Workshops (TTTWs), each one intended for 30 "to be trained" trainers selected among qualified judges.

We remind you to visit the Call for Judges page, where new Calls are launched at least three months before each training event.

Updates on the Warsaw workshop to be held in February 2021 will be provided in the next newsletter. Please be informed that, although the related selection of participants was carried out before the workshop postponement, an additional Call for Judges for limited seats will soon be published on the website.

2. The TTW “EU Fundamental Rights and Non-Discrimination:
Effective Protection in the Light of Article 21 of the Charter”.

The second workshop organized as part of the judicial training programme of FRICoRe was also the first training event held entirely online. The workshop took place on 2nd and 3rd November 2020 and was organized by the University of Groningen as the host partner, and more specifically by Professor Aurelia Colombi Ciacchi, Dr. Lottie Lane and Dr. Tobias Nowak.

The training event, titled “EU Fundamental Rights and Non-Discrimination: Effective Protection in the Light of Article 21 of the Charter”, was aimed to provide selected participants with tools and guidance on how to provide effective protection against discrimination in the light of Articles 21 and 47 of the Charter of Fundamental Rights of the European Union. The new online format did not prevent from doing this by implementing the methodological approach characterizing the FRICoRe Project. The exchange of knowledge and hands-on experience among trainees was in fact put in practice, as well as the primary focus on judicial dialogue between national and European Courts developed around the issues in question and the usual alternation between roundtables and interactive sessions.

In particular, interactive sessions took place thanks to the division of all workshop attendees into virtual groups assigned to three different Zoom “Breakout Rooms”, each coordinated by a team of tutors from the FRICoRe partner institutions. Each interactive session was devoted to discussing hypothetical cases submitted to the participants in advance of the workshop.

All trainees were in fact provided with a set of dedicated training materials, also including the FRICoRe Casebook “EU Fundamental Rights and Non-Discrimination: Effective Protection in the Light of Article 21 of the Charter”. The Casebook was circulated exclusively among the workshop participants in its first draft edition (October 2020), which will be refined and developed further in the light of the issues raised during the workshop as well as all further comments and case law suggestions provided subsequently.
The training event was structured in two sessions, focused on “The Scope of Protection from Direct and Indirect Discrimination under EU Law” and “The Fundamental Right to an Effective Remedy and a Fair Trial in the Field of Non-Discrimination” respectively. Both sessions were characterized by the combination of a roundtable of speakers selected from among the participants based on their experience in the field of non-discrimination and an interactive session involving all workshop participants divided into small working groups.

The FRICoRe Project is grateful to all those who favored the discussion and sharing of practices and views both from the audience and as speakers. In the first session, they participated as speakers Aglica Adamova (Judge at the Supreme Administrative Court of Bulgaria), referring judge in the CHEZ Razpredelenie Bulgaria case (C-83/14), Antonio Scalera (Judge at the Court of Appeal of Catanzaro, Italy) and Mara Bottone (Founder Lawyer of the “Avv. Mara G. Bottone” law firm); whilst they spoke in the second session Gerhard Kuras (Supreme Court of Austria), referring judge in the Starjakob case (C-417/13) and Francesco Perrone (Tribunal of Padua, Italy). Furthermore, the second session was opened by a speech given by Bostjan Zalar (Administrative Court of the Republic of Slovenia) on “The Relation between Articles 18(1) TFEU and 21(2) of the Charter on Non-Discrimination on Grounds of Nationality in Extradition Cases”, particularly focused on the Petruhhin case (C-182/15).

The second session was followed by a concluding Discussion Workshop on “Judicial Governance and EU Non-Discrimination Law” with the aim to investigated further the non-discrimination issues addressed in the judicial training sessions. More information on the workshop programme and speakers is available here.

The event brought together 61 participants in all, including judges and lawyers selected as trainees as well as project partners and academics. The participating trainees filled in an online evaluation form after the workshop, rating the training event with an overall average score of 5,2 out of 6.
We were delighted to read comments defining the workshop on non-discrimination as "stimulating", "useful" or "inspiring", highlighting strengths and making suggestions. All this showed us the way forward in organizing the next FRICoRe training events.

3. The ReJus-FRICoRe Database and the Covid-19 Litigation Database.

The latest updates regarding the case-law database of the project mainly concerned the non-discrimination area and contributed to the development of the related sectoral Casebook.
Overall, 158 cases are currently published covering all areas of the law of interest of the FRICoRe project: consumer protection (66), migration and asylum (40), data protection (38), non-discrimination (12), health law (2). All judgments are also sorted by reference Member State and principles invoked in the judicial dialogue developed between the CJEU and the national court involved.

The continuous updating of the database is made possible by the work of the partner institutions and the valuable cooperation of judges, legal experts and collaborators who contributed to the project by suggesting relevant case law.

A selection of non-discrimination cases
Published on the ReJus-FRICoRe Database

• France, Court of Cassation, 22 January 2020 17-31.158
  Non-discrimination

• France, Prud’hommes Council, 15 May 2019
  Referral to the Court of Justice for a preliminary ruling: CJEU C-463/19 - Syndicat CFTC
  Non-discrimination

• France, Court of Cassation, 13 February 2019 18-17.042
  Non-discrimination

• Finland, Helsinki Court of Appeal, 23 February 2018 18/108226, R 16/738
  Non-discrimination
  Religious discrimination

• France, Court of Cassation, 22 November 2017 13-19.855
  Referral to the Court of Justice for a preliminary ruling: CJEU C-188/15 - Bougnaoui
  Non-discrimination
  Religious discrimination

• United Kingdom, UK Supreme Court, 18 October 2017 [2017] UKSC 62
  Non-discrimination
  Racial or ethnic discrimination
  Safeguards for access to justice: Art. 47, CFREU, Art. 6 ECHR

• United Kingdom, Supreme Court of the United Kingdom, 26 July 2017 UKSC 2015/0233
  Non-discrimination
  Safeguards for access to justice: Art. 47, CFREU, Art. 6 ECHR, Art. 13 ECHR

• Italy, Court of Cassation, 15 February 2017 6101/2017; 6102/2017
  Referral to the Court of Justice for a preliminary ruling: CJEU C-142/17 - Maturi
  Non-discrimination
  Safeguards for access to justice: Right to a fair trial

As announced in the previous newsletter, the FRICoRe Project is also equipped with a new tool specifically intended to monitor the way how national courts are ensuring protection of fundamental rights affected by the emergency measures taken to combat the coronavirus pandemic.

It is the Covid-19 Litigation Database, which collects decisions adopted by national courts in the fields severely hit by the health crisis: from freedom of movement to that of conduct a business, from data protection to the impact on judicial proceedings, just to name a few. The collection of such case law is possible thanks to the collaboration of a special working group set up for this purpose. The aim is to provide national judges with references to judgments on same or similar issues decided.

The correlation between Covid19 litigation and the fundamental right to health will be the focus of one the workshops of 2021 (Trento 27/28 May 2021). We would like to thank the project partners, collaborators and working group members who contributed to the launch of the database, as well as all those who joined more recently.

Currently, the following judges have joined the working group for the reporting of judgments on a European scale: 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), Arnaud Kiecken (Administrative Tribunal of Toulon, France), Maria Cristina Contini (Tribunal of Milan, Italy), Maria Laura Maddalena (Administrative Tribunal, Campania, Italia), Alen Rajko (Administrative Court in Rijeka, Croatia), Petri Helander (Supreme Administrative Court of Finland), Benedicte Fauvarque-Cosson (Council of State, France), Jean-Francois Goujon-Fischer (Administrative Judiciary, France).

We encourage other participants to the FRICOre project to send relevant national judgments concerning COVID litigation in order to improve the database.

As evidence of the importance of specific monitoring and evaluation tools under the current circumstances, we recommend the European Parliament resolution of 13 November 2020 on the impact of Covid-19 measures on democracy, the rule of law and fundamental rights (2020/2790(RSP)).
The resolution provides a comprehensive account of the ongoing debate in institutions and society on the critical issues and risks arising from the adoption of Covid-19 restrictions. The key point of the position expressed by the European Parliament following a wide overview can be identified in the paragraph below, in which the EP:

“Recalls that, even in a state of public emergency, the fundamental principles of the rule of law, democracy and respect for fundamental rights must prevail, and that all emergency measures, derogations and limitations are subject to three general conditions, those of necessity, proportionality in the narrow sense and temporariness, conditions which have been regularly applied and interpreted in the case law of the European Court of Human Rights (ECtHR), the Court of Justice of the EU (CJEU) and various constitutional (and other) courts of the Member States”.

In the light of this, it is crucial according to the EP that the Member States ensure effective parliamentary and judicial control over the declaration and extension of the state of emergency, as well as over the application of emergency powers. With particular reference to judicial control, the EP also emphasizes that:

“internal judicial oversight, complemented by external oversight, continues to be fundamental, as the rights to a fair trial and to effective legal remedies continue to apply during a state of emergency so that individuals affected by emergency measures have effective recourse in the event that state authorities interfere with their fundamental rights and to guarantee that the executive does not exceed its powers”.

The full text of the resolution is available at the following link.

Thank you for your attention.
For more information on the FRICoRe Project and its activities please email to fricore@unitn.it.
The FRICoRe Coordination Team