Litigation before the ECJ: Practice and Plans

1. Litigation before the ECJ: Practice and Plans Peter Reading Equality and Human Rights Commission United Kingdom

2. ECJ Litigation • Strategic Litigation by the EHRC domestically and internationally • The EHRC’s involvement in ECJ litigation • Plans for ECJ litigation

3. Strategic Litigation by the EHRC domestically and internationally Strategic litigation can be distinguished from other litigation: • it is concerned with achieving broad social change rather than merely individual justice; • in the context of equality and other human rights this means seeking to improve protection from discrimination and human rights abuses; • it is systematic and usually part of a wider strategy (often involving litigation, policy work, education and promotion)

4. Strategic Litigation by the EHRC domestically and internationally • Legal Directorate Strategy • Identifies the EHRC key areas of legal work using our powers including: litigation: in domestic courts, the ECHR, and the ECJ inquiries or reports: inquiries into sectors where there is discrimination or breaches human rights policy work: for example of influencing the development of the British Equality Bill and the new Draft GFS Directive on grounds of disability, age, religion or belief, and sexual orientation.

5. Strategic Litigation by the EHRC domestically and internationally • Legal Strategy criteria for litigation include: - case will clarify an important point of law - will have a significant impact on a particular sector - challenges a policy or practice that has caused significant disadvantage - challenges multiple/ intersectional discrimination - involves balancing rights of different groups: eg groups based on sexual orientation and religious groups - is cost effective taking into account likelihood of success

6. Strategic Litigation by the EHRC domestically and internationally • In domestic proceedings the EHRC can: represent individuals in discrimination claims provide amicus curiae (interventions) in discrimination and human rights claims bring proceedings in our name, eg unlawful advertisements • The ECJ the EHRC may appear in preliminary rulings where it represented a claimant or intervened in the domestic proceedings • The ECHR the EHRC can intervene in proceedings and has already been granted permission in about 8 cases

7. EHRC involvement in ECJ litigation • Preliminary rulings involve references from domestic courts or tribunals on the proper interpretation of Community law such as Equality Directives • Aims to ensure uniform interpretation of Community law • The Court does not apply the law to the factual situation underlying the main proceedings • Once the ECJ makes a preliminary ruling the proceedings are remitted to the national court for determination

8. EHRC involvement in ECJ litigation • Coleman v Attridge Law

9. Conducting strategic litigation in Europe: ECJ Principles relevant to preliminary rulings: • Effect of Directives: EC discrimination laws produced by Directives require implementing measures but do not dictate exact form (contrast Regulations, self executing and don’t require implementing measures) • Vertical Direct effect: individuals can enforce rights under EC in national courts against the State: Van Gend en Loos (Case 26/62) • Precedence of Community law: EC law takes prededence over national laws, even where the national law was created prior to the EC law: Costa