October 2009 - Posts
The European Court of Human Rights (a Chamber of seven judges) notified in writing today its judgment in the case of Lombardi Vallauri v. Italy (application no. 39128/05). The Court held that the Catholic University of Milan, which is a public law entity ("personne juridique de droit public"), should have given reasons for refusing to employ a lecturer who had not been approved by the Ecclesiastical authorities; hence, it found a violation of Articles 6 § 1 (right to a fair hearing) and 10 (freedom of expression) of the European Convention on Human Rights.
Principal facts
More specifically, the applicant, Mr. Lombardi Vallauri, is an Italian national who began teaching legal philosophy in 1976 at the Faculty of Law of the Università Cattolica del Sacro Cuore (Catholic University of the Sacred Heart) in Milan, on the basis of contracts renewed on an annual basis. When a competition for the post was advertised for the 1998/99 academic year, he applied. The Congregation for Catholic Education, an institution of the Holy See, informed by a letter the President of the University that some of the applicant's views were "in clear opposition to Catholic doctrine" and that "in the interests of truth and of the well being of students and the University" the applicant should no longer teach there. The University President wrote to the Dean of the Faculty of Law, informing him of the Congregation's position. The Faculty Board took note of the Holy See's position and decided not to examine the applicant's application, since one of the conditions for admission to the competition, namely the approval of the Congregation for Catholic Education, had not been met.
The applicant applied to the Lombardy Regional Administrative Court to have the decisions of the Faculty Board and the ecclesiastical authority set aside. He argued that the decisions in question were unconstitutional because they breached his right to equality, freedom of instruction and freedom of religion. The Regional Administrative Court rejected the application on the grounds, inter alia, that adequate reasons had been given for the Faculty Board's refusal to consider the applicant's candidacy, and that the revised Concordat between the Holy See and the Italian Republic did not lay down any requirement to state the religious grounds for refusing approval. The court further held that neither the Faculty Board nor the court itself had jurisdiction to examine the legitimacy of the Holy See's decision, which had emanated from a foreign State. The court also pointed out that teaching staff were free to choose whether or not to adhere to the principles of the Catholic faith.
Mr. Vallauri then appealed to the Consiglio di Stato reiterating the lack of reasons given for the Faculty Board's decision and contesting the lack of jurisdiction of the administrative court. The Consiglio di Stato dismissed the appeal. It stated that the Italian administrative and judicial authorities could not depart from a Constitutional Court judgment, according to which the fact that teaching appointments at the Catholic University were subject to the approval of the Holy See was compatible with Articles 33 and 19 of the Constitution, which guaranteed freedom of instruction and freedom of religion respectively. The Consiglio di Stato further observed that "no authority in the Republic may rule on the findings of the ecclesiastical authority".
Complaint before the ECHR
Relying on Article 10 of the Convention, Mr Lombardi Vallauri complained that the decision of the Università Cattolica del Sacro Cuore, for which no reasons had been given and which had been taken without any genuine adversarial debate, had breached his right to freedom of expression.
Relying also on Article 6 § 1 of the Convention with regard to the fairness of the proceedings and his right of access to a court, the applicant complained of the domestic courts' failure to rule on the lack of reasons for the Faculty Board's decision, thereby restricting his ability to appeal against that decision and to instigate an adversarial debate. Mr. Lombardo Vallauri also complained of the fact that the Faculty Board had confined itself to taking note of the Congregation's decision, which had also been taken without any adversarial debate.
Decision of the ECHR
The Court considered that, in omitting to explain how the applicant's views, which supposedly ran counter to Catholic doctrine, were liable to affect the University's interests, the Faculty Board had not given adequate reasons for its decision.
The Court went on to observe that, although it was not for the domestic authorities to examine the substance of the Congregation's doctrinal stance, the administrative courts, in the interests of the principle of adversarial debate, should have addressed the lack of reasons for the Faculty Board decision.
In conclusion, the Court considered that the University's interest in dispensing teaching based on Catholic doctrine could not extend to impairing the very substance of the procedural guarantees afforded to the applicant by Article 10 of the Convention. Accordingly, in the particular circumstances of the case, the interference with Mr. Lombardi Vallauri's freedom of expression had not been "necessary in a democratic society". The Court therefore held, by six votes to one, that there had been a violation of Article 10 of the Convention in its procedural aspect.
For the same reasons the Court held that the applicant had not had effective access to a court, and found a violation of Article 6 § 1 by six votes to one.
Washington Post has an article today on President Obama scolding business groups that have fought his plan to create a new federal agency (Consumer Financial Protection Agency) to oversee mortgages, credit cards and other consumer financial products, casting the debate as a battle between his administration and Wall Street.
According to the newspaper, the proposed agency has become the most divisive, partisan element of the administration's wide-ranging plan to overhaul the nation's financial regulatory system. Republicans on congressional committees considering regulatory reform have almost uniformly opposed it. Banks and other financial firms, along with armies of lobbyists, have flooded Capitol Hill carrying the message that the new agency would add an unnecessary layer of government regulation, increase costs, stifle financial innovation and ultimately curtail choices for consumers. Obama disputed that the new agency would restrict consumer choice or limit meaningful innovation. "Nothing could be further from the truth," he said, arguing that "in a financial system that's never been more complicated, it has never been more important to have a watchdog function like the one we've proposed." The House Financial Services Committee plans to edit and vote on the legislation beginning as early as next week.
On the other side of the Atlantic, there are different agencies for consumers of financial products, although they seem to be closer to ombudsmen and, consequently, probably less powerful than the contemplated U.S. agency might prove to be. In the European Union, the European Commission launched in 2001 the Financial Dispute Resolution Network (FIN-NET). FIN-NET is a financial dispute resolution network of national out-of-court complaint schemes in the European Economic Area countries (the European Union Member States plus Iceland, Liechtenstein and Norway) that are responsible for handling disputes between consumers and financial services providers, i.e. banks, insurance companies, investment firms and others. Currently FIN-NET has 46 members from 21 European Economic Area countries. More information about the members can be found here. It would be interesting to hear more about individual country cases. Are agencies entrusted with overseeing financial services in other places part of the respective ministries or independent public bodies? What is the scope of their powers? Do they resemble Ombudsmen or do they also possess regulatory authority?
On October 6, 2009, the Council of the European Union publicized its draft conclusions on Better Regulation for the 3-4 December 2009 Competitiveness Council. The text of these conclusions is available here.
In its draft conclusions, the Council acknowledges that important progress has been achieved both at EU level and in the member states in taking the Better Regulation Agenda forward; it stresses, however, that more needs to be done.
With respect to Impact Assessment, the Council considers that there is scope for quality improvement as regards, inter alia, evaluation of alternative policy options, transparency and quantification of administrative burdens as well as other costs and benefits. It also invites the member states to continue to establish or further develop their impact assessment systems, including providing their civil servants with training in handling impact assessments.
Furthermore, the Council stresses the need for early and timely stakeholder consultation, using appropriate methods, throughout the policy-making cycle to enhance regulatory quality; in addition, it reaffirms the importance of enhancing access to law and the need for clear and simple language in order to make the regulatory framework easier to comply with. Therefore, it invites the Commission to
- enhance the use of consultation during the whole policy-making cycle;
- consider the creation of an easily accessible multi-lingual website, a "single entry point", with updated relevant information on policies and initiatives related to business.
Today marks the formal opening of the UK Supreme Court with the swearing in of its 11 justices in a ceremony in London. The Supreme Court, housed at Middlesex Guildhall, replaces the Law Lords as the last court of appeal in all matters other than criminal cases in Scotland.
According to BBC news ("UK Supreme Court judges sworn in"), Lord Phillips, the first President of the Court, said: "This is the last step in the separation of powers in this country. We have come to it fairly gently and gradually, but we have come to the point where the judges are completely separated from the legislature and executive. ... The change is one of transparency. It's going to be very much easier for the public to come to our hearings. ... I would hope that the court is still sitting in 100 years' time and that when people look back at this step that they see it as a very significant step in the constitution of this country."
The Supreme Court sits for the first time later on Thursday to deal with a relatively minor issue relating to legal costs. Its first major appeal hearing follows next week in a case concerning terrorist suspects whose assets have been frozen.
The Supreme Court's website address is: http://www.supremecourt.gov.uk/. A blog has been launched to monitor Supreme Court developments (http://www.ukscblog.com/).
U.S. EPA Administrator Lisa Jackson announced yesterday a proposal requiring large industrial facilities that emit at least 25,000 tons of greenhouse gases (GHGs) a year to obtain construction and operating permits covering these emissions. These permits must demonstrate the use of best available control technologies and energy efficiency measures to minimize GHG emissions when facilities are constructed or significantly modified.
In addition, EPA is requesting public comment on its previous interpretation of when certain pollutants, including CO2 and other GHGs, would be covered under the permitting provisions of the Clean Air Act. A different interpretation could mean that large facilities would need to obtain permits prior to the finalization of a rule regulating greenhouse gas emissions.
You can find additional information, including a link to the full text of the Administrator's remarks at the California Governor's Global Climate Summit, on the agency's website here. Furthermore, the Washington Post today has an article ("EPA, Senate Take Aim at Greenhouse Gases") on the EPA's proposal and the recent climate bill introduced in the Senate. Here is the article that appeared in the New York Times on the same topic.