Equinet Legal Seminar 30 June 2009

1. Equinet Legal Seminar 30 June 2009 ECJ limits in discrimination. Preliminary ruling procedure before ECJ. How national equality bodies can make use of it? PhD Bjørn Dilou Jacobsen The Danish Institute for Human Rights

2. 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?

3. 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”.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.