Editorial

The recent judgment of 8 March 2022 in Bezirkshauptmannschaft Hartberg-Fürstenfeld offers a rare example of a case in which the European Court of Justice (ECJ) explicitly departs from an earlier judgment, which appears to be incorrect.Case C-205/2 NE v Bezirkshauptmannschaft Hartberg-Fürstenfeld [2022] EU:C:2022:168. The incorrect judgment is that of the peculiar case Link Logistik N&N.Case C-384/17 Dooel Uvoz-Izvoz Skopje Link Logistik N&N [2018] EU:C:2018:810. In that case, the Court ruled that the requirement of proportionality of penalties of Article 9a of Directive 1999/62 could not be regarded as having direct effect and, therefore, did not give individuals the right to rely on it before the national authorities. The main reason for this opinion was that the directive did not establish any express criterion for assessment of the proportionality of such penalties and, therefore, left the Member States a wide margin of discretion, which precluded its direct effect. The judgment casted serious doubts on whether the Court had departed from its longstanding case law according to which individuals could invoke the EU principle of proportionality in national cases within the scope of EU law. In addition, if the proportionality principle did not have direct effect, would then the same apply to other general principles of EU law, such as the equality principle or the principle of legitimate expectations? That would be a remarkable new line of case law, although not one I would have welcomed.

The ECJ judgment in Bezirkshauptmannschaft Hartberg-Fürstenfeld clarifies that Link Logistik is not intended to be a new line of case law. On the contrary, in the former case, the Court explicitly states that, ‘contrary to what was been held in [Link Logistik], the requirement of proportionality of penalties laid down in Article 20 of [Directive 2014/670] is unconditional and sufficiently precise to be capable of being invoked by an individual and applied by the national administrative authorities and courts’.Case Bezirkshauptmannschaft Hartberg-Fürstenfeld, point 29. To this, it adds ‘that observance of the principle of proportionality, which constitutes a general principle of EU law, is binding on Member States when they are implementing that law, including in the absence of harmonisation of EU legislation in the field of sanctions applicable’.Case Bezirkshauptmannschaft Hartberg-Fürstenfeld, point 31. In short, also in future, the proportionality principle, written or as unwritten principle, can still be invoked by individuals in the Member States; a welcome correction of Link Logistik. Moreover, for reasons of legal certainty, it can be applauded that the Court is extremely clear in the departure from the latter case.

It is also interesting how the Court reconciles the direct effect of the proportionality principle laid down in Article 20 Directive 2014/670 with the fact that the Member State, when implementing the provision, enjoys a margin of discretion. According to the Court, this margin does not prevent the provision from being directly effective because the discretion is limited by the prohibition on imposing disproportionate penalties. Referring, by analogy, to the classic case of Kraaijeveld and others,Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403. the Court confirms that a margin of discretion does not, in itself, preclude judicial review from being carried out in order to verify whether the Member State concerned exceeded the limits set for that margin of discretion when it transposed that provision. Insofar, regarding these limits, the proportionality principle has direct effect. This application of the so-called Kraaijeveld direct effect of limits of discretion, in respect of a general EU principle, is new.See for other applications of Kraaijeveld, J.H. Jans, S. Prechal, R.J.G.M. Widdershoven, Europeanisation of Public Law, (2nd edition, Europa Law Publishing 2015) 95-100.

This volume of REALaw contains, again, an article in the Focus Covid series, namely ‘Pandemic and Administrative EU Soft Law: Persistent Challenges to the Rule of Law in the EU and Possible Solutions’ by Wolfgang Weiß. In it, the author takes the proliferation of EU soft law instruments in the management of the COVID-19 pandemic as an opportunity to analyse their effects and challenges to democracy and rule of law in the EU, posed by the use of EU soft law in the implementation of EU law by the Member States. While one could observe the benefits of EU soft law for national implementation during the pandemic, the constitutional challenges became apparant as well. According to Weiß, these challenges should be addressed by a general legal framework for the adoption of EU soft law. Such a framework should stipulate soft law’s subsidiarity vis-a-vis executive rulemaking, and should introduce minimum procedural (control, consultation), transparency, and justification requirements for the adoption of Commission soft law instruments, together with clarifications as to their domestic effects. The pending project of adopting a general EU regulation on administrative procedures would be a suitable opportunity to incorporate the proposals formulated in this article.

The article is followed by two case note analyses. In ‘Recent Developments Concerning the Right to Silence and Privilege Against Self-Incrimination Under the Charter of Fundamental Rights of the EU – A Critical Reflection’, Aart de Vries discusses the case of DB v Consob. In the case, the Court of Justice recognised that natural person who risks self-incrimination have the right to remain silent during proceedings which can lead to the imposition of administrative penalties of a criminal nature. Of general importance is the fact that the Court does not adhere to its ‘own’ approach concerning the right to silence of undertakings in competition matters as established in the case of Orkem v Commission, but aligned its judgment with the case-law of the European Court of Human Rights instead. According to De Vries, DB v Consob constitutes an important ruling which provides much needed clarity on scope of the right to silence of natural persons under the Charter. Nevertheless, important aspects of the right to silence remain unaddressed and new questions surface.

In ‘The interaction between administrative and judicial review at the European level’, Andreas Witte discusses the judgment of the General Court in Ukrselhosprom PCF LLC and Versobank AS v ECB. The judgment concerns the subject-matter of judicial review before the EU Courts of ECB decisions which have been reviewed in an administrative appeal procedure in which ECB has been advised by the Administrative Board of Review (ABoR). Is the subject-matter of judicial review the primary ECB decision, the ECB decision after the administrative appeal or perhaps both? From the case, it appears that only the second ECB decision can form the subject matter of judicial review. According to the author, this outcome is very similar to that in jurisdictions where administrative appeal or similar procedures exist as a concept in positive law.

Finally, Kathrin Hamenstädt provides a book review of Justine Stefanelli’s Judicial Review of Immigration Detention in the UK, USA and EU: from Principles to Practice (Hart Publishing 2020). In the book, Stefanelli examines the legal framework of immigration detention in three jurisdictions – the USA, the UK, and the EU, focusing particularly on the case law of first instance courts. According to Hamenstädt, the book contains a wealth of information and demonstrates thorough, in-depth, and rigorous scrutiny. Furthermore it offers an excellent, detailed, and well-structured view on the topic from different angles.

Rob WiddershovenProfessor of European Administrative Law at Utrecht University.