Novel issues affecting senior office-holders

Mon, Nov 26, 2012, 00:00

In two recent cases the European Court of Justice has considered somewhat novel issues relating to the application of EU law to the functioning of senior office-holders in member states.

In Case C-286/12 Commission v Hungary the commission alleged that a Hungarian law which very significantly reduced the retirement age of judges was in breach of Directive 2000/78/EC on equal treatment. Whereas judges had been permitted to remain in office until the age of 70, the new law required that from January 1st, 2012, those reaching the new retirement of age of 62 were obliged to retire.

In its judgment of November 6th, the court found the new law had failed to give due recognition to the well-founded expectation of judges that they would be permitted to continue to work until the age of 70.

In its judgment of October 16th in Case C-364/10 Hungary v Slovakia the court considered the novel and diplomatically sensitive circumstances in which the president of Hungary László Sólyom was refused entry to Slovakia.

The president had intended to travel to the Slovak town of Komárno on August 21st, 2009, to inaugurate a statue of St Stephen who is recognised as founder and first king of the Hungarian state. August 21st is considered a sensitive date in Slovakia as it was on this date in 1968 that Warsaw Pact forces (including Hungarian forces) invaded the then Czechoslovakia.

On the day of the intended visit, the Slovak foreign ministry indicated to the Hungarian ambassador to Slovakia that the president was prohibited from visiting and sought to rely on provisions of Directive 2004/38/EC on freedom of movement within the EU to justify the prohibition. The court concluded that while the authorities were incorrect in seeking to rely on the directive, they could rely on the customary rules of general international law in refusing entry.

On October 18th, the court’s advocate general Juliane Kokott delivered a much-anticipated Opinion in Case C-260/11 Edwards. This case concerns the issue of access to justice in environmental cases, in particular, the question of how much judicial proceedings in environmental cases should cost. While EU law generally leaves it up to member states to regulate their own level of legal fees, this approach is changing in the field of environmental law due to the obligations imposed by the UN’s 1998 Aarhus Convention. Among other things, the convention requires that the costs of certain environmental judicial proceedings should not be “prohibitively expensive”.

The advocate general underlined that national rules must “actually prevent” judicial proceedings from being prohibitively expensive “in each individual case”. The judgment, expected within the coming months, is potentially of great interest for Ireland, which legislated to improve its legal costs regime in environmental matters in 2011.

Donogh Hardiman and Suzanne Kingston are committee members of the Irish Society for European Law

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