Strasbourg acting as the EU Court’s enforcer

26 April 2014 by David Hart KC

Dhahbi v.Italy, ECtHR, 8 April 2014 – read judgment – in French only

A case to get the Sun leader writers confused, in that the Strasbourg Court was making sure that Italy did not get away with refusing to refer a case to the EU Courts. 

Mr Dhahbi lives in Italy.  He was of Tunisian origin, and was not at the time of this case an Italian citizen.  He applied for and was refused a household allowance on the sole ground of nationality. He relied upon an entitlement to this allowance in an association agreement between the EU and Tunisia (known as the Euro-Mediterranean Agreement).  The Italian court refused his application to have the case determined by the CJEU in Luxembourg.

Strasbourg decided that there had been a violation of his fair trial rights under Article 6, and discrimination on grounds of status under Article 14, when read with Article 8.

The ECtHR observed that the Italian courts had failed to comply with their obligation to give reasons for refusing to submit a preliminary question to the CJEU in order to determine whether the Euro-Mediterranean Agreement allowed the authorities to refuse to pay the allowance. Under Article 6, national courts whose decisions were not open to appeal under domestic law were required to give reasons for their refusal to refer a preliminary question on the interpretation of EU law. So, under EU law, they should say why the question was not relevant, or that the provision had already been interpreted by the CJEU, or that the correct application of EU law was so obvious as to leave no scope for reasonable doubt.

Given that no appeal lay against its decisions under domestic law, the Italian Court of Cassation had been required to give reasons for its refusal to refer the question whether, in the light of the exceptions provided for in CJEU case-law, it was possible under the Euro-Mediterranean Agreement for a Tunisian worker to be deprived of a family allowance .The Court of Cassation had neither referred the case to CJEU nor gave reasons for not referring.

The key to Strasbourg’s reasoning was given in [31] – citing  Vergauwen v. Belgium, No. 4832/04, § § 89-90 , 10 April 2012 – no link available.

Article 6 § 1 imposes on domestic courts a duty to give reasons under applicable decisions whereby they refuse to refer a question ;

• When considering an alleged violation of Article 6(1) on these grounds, the task of the Court is to ensure that the refusal is duly accompanied by such reasoning;
• Given Article 267(3) of the Treaty on the Functioning of the EU (TFEU), the national courts against whose decisions are not subject to domestic appeal are required to provide reasons for their refusal to refer a question to the CJEU for a preliminary ruling. They must therefore give reasons why they consider that the question is not relevant or that the provision of EU law in question has already been interpreted by the ECJ , or although the correct application of EU law is needed so obvious as to leave no room for reasonable doubt.

The Court then reviewed the Italian court’s decision. It could find no reference to the request for a preliminary ruling made ​​by the applicant, and no reasons why it was thought  that the issue raised did not merit being transmitted to the CJEU. The judgment does not allow anyone to determine whether this issue was considered irrelevant , or the answer was clear under EU case law, or if it was simply ignored. The ECtHR contrasted this with Vergauwen, in which it had  found that the Belgian Constitutional Court had properly justified its refusal to refer. Nor was there any reference in the Italian Court’s judgment to any CJEU case law.

Accordingly, the ECtHR concluded that there had been a violation of Article 6 § 1 of the Convention.

The Court proceeded to look at the Article 14/Article 8 claims. It decided that the complaint fell within the scope of Article 14, when read with Article 8, because the complaint about loss of family allowances, in the graphic French of the original

tombe donc sous l’empire de l’article 8

A difference in treatment of nationals and non-nationals was readily established. The final issue was whether there was an objective and reasonable justification for that difference in treatment. The only grounds advanced were budgetary. Given that only very weighty considerations can justify a difference in treatment based exclusively on nationality, and despite the broad margin of appreciation afforded to the Government in the social security field, the Court was not convinced that there was a reasonable relationship of proportionality as Article 14 requires.

Upshot: Mr Dhahbi recovered the lost allowances and €10,000 for “moral damage”.

Conclusion 

The obligation to refer a case to the CJEU under Article 267(3) only occurs when there is no appeal from the court hearing the application. Apart from the UK Supreme Court, this would include the Court of Appeal when refusing permission to appeal to it. It is pretty unlikely that our appellate courts would be unwise enough not to give some reasoning capable of justifying a decision not to refer. But, as we can see, the end of the line for an EU issue in the domestic and EU courts, may not necessarily be the end of the line if you get to Strasbourg.

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