Strasbourg acting as the EU Court’s enforcer

26 April 2014 by

67Dhahbi 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 nationalityHe 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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more

2 comments


  1. Sarah Lambrecht says:

    For an English version and a more detailed example of this case law see Ullens de Schooten and Rezabek v. Belgium 20 September 2011, Nos. 3989/07 and 38353/07 (http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-108382). See especially §57-62.

  2. So the treaty agreement with Tunis gives their citizens EU member state citizens rights. Did Italy even know that such s treaty existed? What were its terms and relevance to non EU citizens? Surely Italy acted in accordance with domestic law as applied to non citizens and non EU citizens cannot rely on ECHR legislation.
    Is this expansion of the EU by the back door?

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: