Convincing national courts to refer a case to the CJEU: lessons from particular cases

1. Convincing national courts torefer a case to the CJEU:lessons from particular cases EQUINET 28 March 2012 Clare Collier, Senior Lawyer,Equality and Human Rights Commission

2. Content • Commissions remit • Use of our Legal powers • CJEU preliminary ruling procedure • Criteria for making a reference • Approach of the domestic courts in the UK • Commission’s relevant cases: • Coleman • Heyday • NS • X v Mid-Sussex CAB • Summary and conclusions • More information and contact details

3. Role of the Equality and Human Rights Commission EHRC has a remit across the three nations of Britain and: Provides advice and guidance Works to implement an effective legislative framework Raises awareness and understanding of everyone’s rights Monitors progress - Triennial Review and Human Rights Review Tripartite mandate: to promote and protect equality and human rights, and to foster good relations across 9 grounds Accredited UN National Human Rights Institution Legal enforcement powers and power to bring and intervene in court proceedings Statutory duty to do these things set out in Equality Act 2006

4. Legal powers • Commission has a unique suite of enforcement powers • Assist and represent individuals taking cases (equality cases only) • Judicial Review proceedings in Commissions name (equality and human rights) • Formal inquiries, investigations and assessments – disclosure powers, can lead to further legal action such as compliance notices • Intervene in Commissions name as an independent third party in cases brought by others in the domestic courts and in Europe (equality and human rights)

5. How we use our powers Individual cases Interventions Judicial Reviews Injunctions to prevent unlawful acts - BNP Inquiries Investigations and Assessments – disclosure powers apply and power to take related legal action

6. CJEU preliminary ruling procedure • TFEU Article 267 (ex Article 234 TEC), any national court or tribunal of a Member State may refer questions pertaining to the interpretation of EU law to the CJEU for a preliminary ruling, if the national court considers this necessary in order to give judgment • If there is no right of appeal it must refer such questions to the CJEU for a preliminary ruling

7. Preliminary reference procedure (2) • It is up to the national court or tribunal to assess whether a preliminary ruling is required • Not necessary where the EU law in question has already been interpreted by the CJEU or • where the correct application of the EU law in question is so obvious as to leave no scope for reasonable doubt (acte clair)

8. The CJEU preliminary reference proceedings • All the parties to the national proceedings are allowed to take part in the reference proceedings – including by making written and oral submissions • This includes parties who are interveners in the domestic proceedings • BUT you cannot intervene in the reference proceedings unless you are already a party

9. The outcome • The court makes a ruling on the interpretation of EU law to enable the national court to decide the case • The CJEU does not decide on the facts raised in the national proceedings; this is the task of the national court or tribunal • Preliminary rulings are binding on the national court for which the decision is given, and in practice, precedent-setting across Member States

10. Criteria for making a reference • Only if necessary for the disposal of the case (not hypothetical questions) but court reluctant to reject questions, wide interpretation of relevance • Any court or tribunal can refer a question – but only court of last instance must refer • Not if a materially identical question has already been the subject of a preliminary ruling (acte éclairé)

11. Acte clair • National court may not only decide whether it is irrelevant to refer the question(s) that the parties seek to refer but also they need not refer if • the provision is so unambiguous that there can be no real doubt as to the correct interpretation ie. No real risk of incorrect interpretation and therefore no risk of inconsistent interpretation across member states

12. Approach of the domestic courts in the UK • Courts can be reluctant to make a preliminary reference unless there is a clear ambiguity • Perhaps over keen to use acte clair doctrine – not always following CILFIT judgment conditions • Where there is no obligation to make a reference it is up to the national court to decide

13. EHRC’s relevant cases • C-303/06 Coleman v Attridge Law • Heyday: C-388/07 - Age Concern England • C‑411/10. NS v Secretary of State for the Home Deparment • X v Mid-Sussex CAB (still at national level)

14. Coleman • C-303/06 Coleman v Attridge Law • Discrimination by association (discrimination and harrassment of applicant not because she herself was disabled but because of her son’s disability) • Preliminary reference by first instance tribunal (ET)

15. Heyday • Age discrimination challenge to default retirement age under Framework Directive - challenge • Commission would have wanted to intervene had it been possible to do so but too late to get involved in the domestic proceedings – had to wait until it came back to the UK courts

16. NS v Secretary of State for the Home Department • important case for the UK not only because of the substantive issues concerning asylum law (Dublin Regulation) • Interpretation of the Optional protocol to the Lisbon Treaty signed by the UK, Poland and Czech republic • High Court judgment was significantly wrong in many ways – triggered intervention by the Commission • CA agreed to refer

17. NS (2) • Parties agreed on 7 questions to refer • Participation by 15 member states – very important that there were other voices (equality body / NHRI and NGOs – Amnesty, AIRE Centre and UNHCR) • CJEU judgment December 2011 • Asylum claim will now be determined in the UK but domestic proceedings not yet settled – dispute as to costs and declaration

18. X v Mid-Sussex CAB • proceedings in the national courts since 2009 • Question is whether a volunteer is entitled to rely on the Framework Directive (78/2000) • EAT and CA both decided no need for a reference because ‘occupation’ does not include volunteers (acteclair) • SC Oct 2012 will again be asked to refer (EHRC suggests questions in the application to intervene) • Shows difficulty of persuading court that there is an ambiguity to resolve

19. Summary • National equality bodies can play an important role in helping to ensure that references are made in appropriate cases • Important to get involved in cases at an early enough stage • National courts may seek to determine issues themselves – need good legal argument, and preferably all parties agreement • Takes several years to get through national courts and CJEU and national court again so need to take a long view

20. Contact details • clare.collier@equalityhumanrights.com • www.equalityhumanrights.com • Full list of interventions at: http://www.equalityhumanrights.com/legal-and-policy/enforcement/

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