Equinet Legal Seminar 30 June 2009 ECJ limits
- Slides: 10
Equinet Legal Seminar 30 June 2009 ECJ limits in discrimination. Preliminary ruling procedure before ECJ. How national equality bodies can make use of it? Ph. D Bjørn Dilou Jacobsen The Danish Institute for Human Rights
Introduction • TEC Article 234: ECJ’s jurisdiction to interpret EU law “…where any such question is raised in a case pending before a court or tribunal of a Member State. ” - look into the ability of EBs to participate in national court proceedings as a means to develop the law. - can EBs with competence to hear and investigate complaints and make legally binding decisions request a preliminary ruling themselves?
A right under EU law for EBs to participate in nat. court proceedings? • Directive 2000/43/EC Article 13 etc: -the competences of EBs must include “providing assistance to victims of discrimination in pursuing their complaints” and “making recommendations on any issue relating to such discrimination”.
A right under EU law for EBs to participate in nat. court proceedings? • Directive 2000/43/EC Article 7 etc: -Member States shall ensure that organisations etc. , which have, in accordance with their criteria laid down in national law, a legitimate interest in ensuring that the provisions of the directives are complied with, may engage on behalf of or in support of the complainant in judicial proceedings.
A right under EU law for EBs to participate in nat. court proceedings? • Literal interpretation: - wording vague. • International recommendations: - EB should be able to represent individuals in court. • Purposive interpretation: - to promote equal treatment. Can be done in various ways.
A right under EU law for EBs to participate in nat. court proceedings? • Preparatory works to the EC Directives: - competences of the EB deliberately worded vaguely in order to leave it to the discretion of the Member States. - specifically decided not to add EB in listing of “organisations” etc. that may go to court. - thus, no right to participate in national court proceedings can be derived from EU law.
Means of participation in national court proceedings • Representing individuals in court - ex: the British Commission for Equality and Human Rights; the Swedish Equality Ombudsman - if no express power to do so, it depends on national rules of civil procedure. - pros: control of case, including the legal argumentation - cons: expensive; may cause loss of credibility were the case is lost.
Means of participation in national court proceedings • Class actions - ex: US Equal Employment Opportunity Commission; Austrian National Council of Disabled Persons. - in some Member States, civil rules of procedure allow for class actions for bodies with “specific interest”, but it may be uncertain whether these rules cover EBs. - pros: control of case; may cover large group. - cons: expensive; may cause loss of credibility were the case is lost.
Means of participation in national court proceedings • Bringing legal proceedings in own name - ex: Belgian Centre for Legal Opportunities and Oppostion to Racism in the Feryn case. - if no express power to do so, it depends on national rules of civil procedure. - same pros and cons as when representing complainants.
Means of participation in national court proceedings • Interventions - ex: the former British EBs in the Igen case; the Irish Equality Authority in the Doherty case; Hungarian Minorities Ombudsman (Annual Report 2005 pp. 119 -121) - if no express power to do so, it depends on national rules of civil procedure. - Pros: may appear more neutral; less expensive. - cons: may collide with other functions, e. g. hearing and investigating complaints.