Trinity
Term
[2016] UKSC 34
On appeal from: [2016] EWCA Civ 12
JUDGMENT
In the matter of D (A Child)
before
Lord Neuberger, President
Lady Hale, Deputy
President
Lord Clarke
Lord Wilson
Lord Hughes
JUDGMENT GIVEN ON
22 June 2016
Heard on 23 May 2016
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Appellant
(Father)
Richard Harrison QC
Stephen Jarmain
Samantha Ridley
(Instructed by
Wedlake Bell Solicitors LLP)
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1st Respondent
(AA Mother)
James Turner QC
Edward Devereux
(Instructed by
Osbornes Solicitors LLP)
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2nd Respondent
(DD Child)
Nicholas Anderson
Katy Chokowry
(Instructed by
CAFCASS Legal Services)
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1st
Intervener( Written submissions only)
(Reunite
International Child Abduction Centre)
Henry Setright QC
Michael Gration
(Instructed by
Dawson Cornwell)
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2nd
Intervener
(Ministry of
Justice)
Hugh Mercer QC
Alistair Mackenzie
(Instructed by The
Government Legal Department)
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LADY HALE: (with whom Lord
Neuberger, Lord Clarke, Lord Wilson and Lord Hughes agree)
1.
On 21 March 2016, this court gave a father permission to appeal against
the decision of the Court of Appeal that a custody order which he had obtained
in Romania should not be enforced in this country under the Brussels II
(Revised) Regulation (“BIIR”), because it had been given “without the child
having been given an opportunity to be heard, in violation of fundamental
principles of procedure” in this country. In the view of the panel giving
permission to appeal, the judgment of the Court of Appeal raised an arguable
point of law of general public importance, as to the precise extent to which it
is a fundamental principle of the procedure relating to all cases about
children in the courts of England and Wales that the child should be given an opportunity
to be heard. This is a question of importance in all children’s cases, not just
those where the court here is asked to enforce a judgment given in another
member state of the European Union.
2.
However, it has now become clear that under BIIR this court has no
jurisdiction to entertain such an appeal. This point was not raised by the
respondent mother in her notice of objection to the application for permission
to appeal. No doubt, had she done so, the court would have listed it for oral
argument before deciding whether or not to give permission. In the event, once
it was raised, we were able to arrange a hearing at short notice, in advance of
the date set for the substantive appeal. As a point of jurisdiction, it could
not be ignored, however inconveniently late in the day it was raised. We are
grateful to the parties for the speed with which they have prepared their
written and oral arguments and, in particular, to the Ministry of Justice, whom
we asked to intervene in order to give us an account of the relevant history.
The history of the case
3.
The circumstances in which this question arises are deeply unfortunate,
not least because of the delays there have been, not only in Romania but also
in this country, but they are largely irrelevant to the question of law which
we have to decide. The child in question, DD, was born in Romania on 8 November
2006 and so is now aged nine and a half. His parents are both Romanian but met
while working in this country. They returned briefly to Romania, where they got
married and the child was born, but by January 2007 both parents had returned
to live in this country with the child. They separated in November 2007. DD has
continued to live here with his mother, his main carer, ever since. The father
returned to live in Romania in 2009, but has kept a second home here and for
most of the intervening years (with a long gap from November 2012 until March
2014) has shared the care of DD with the mother. He has a significant
relationship with his son.
4.
Although DD is undoubtedly habitually resident in this country, the
parties chose to litigate about his future in Romania. The father issued
divorce and custody proceedings there in November 2007. The couple were
divorced in April 2008. The father was awarded custody of DD, but the mother
successfully appealed. At the retrial, the father was again awarded custody,
but first the mother and then the father successfully appealed. At a further
retrial in a different court, in December 2011, the court awarded joint
parental authority to both parents, while finding that DD’s domicile and
residence were at the mother’s address in England. Both parties appealed, but
their appeals were dismissed in March 2013, on the basis that joint custody is
the norm and sole custody the exception. Nevertheless, the child should remain
living with his mother in England, as it was not in his best interests to
change his living arrangements. The father launched a further appeal, to the
Bucharest Court of Appeal. Its final decision, in November 2013, was that the
child should live with the father, on the basis that he could provide “the best
moral and material conditions”.
5.
In February 2014, the father applied for the recognition and enforcement
of this order by the English court. The result was the re-establishment of
contact between father and son and a High Court-ordered arrangement that the
parents share his care in this country while the father’s application
proceeded. On 1 May 2014, Peter Jackson J ordered that DD be made a party to
the enforcement proceedings: see the summary of the history in In re D
(Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam),
[2015] 1 FLR 1272. He quotes, in para 33, the reasons given in his earlier
judgment. This was not so as to make inquiries as to his welfare, which would
be inappropriate in enforcement proceedings, but because “D’s rights as an
individual child are engaged in his father’s application and … whatever has
happened in this case he bears no responsibility for it” (para 15). His
interest was not being represented (para 16) and the facts were “egregious”
(para 10) - neither the judge, nor counsel, nor the Children’s Guardian had
experienced a “case in which enforcement is being sought with regard to a child
who has attained the age of seven and has never lived in the country from which
the relevant order emanates” (para 11).
6.
The registration of an order under BIIR is “essentially administrative,
although it requires a judicial act”: see In re S (Foreign Contact Order) [2009] EWCA Civ 993, [2010] 1 FLR 982, para 12. Judicial consideration of any dispute
occurs at the first “appeal” stage. This came before Peter Jackson J who
determined it in July 2014 (reference above). Article 23 lays down seven
grounds for non-recognition. The judge rejected the mother’s case on article
23(a), that recognition was “manifestly contrary to the public policy of the
member state in which recognition is sought taking into account the best
interests of the child”. This ground is to be narrowly construed and the Bucharest
decision was “not so extreme as to require recognition to be withheld on this
ground” (para 74).
7.
However, he did refuse recognition under article 23(b), which provides
that a judgment shall not be recognised “if it was given, except in case of
urgency, without the child having been given an opportunity to be heard, in
violation of fundamental principles of procedure of the member state in which
recognition is sought”. The Bucharest Court of Appeal’s conclusion about DD’s
wishes and feelings, namely that “he constantly craves for [the father’s]
permanent presence”, had not arisen from any direct or indirect enquiry
involving the child himself (para 83). It had a report from a Cafcass officer
in earlier enforcement proceedings when DD was two years old. It had a report
from a social worker when he was five and a half, in response to the father’s
concerns about the mother’s care. At the first-tier appeal in February 2013,
the father had asked the court to hear the child, but the mother had opposed
this (interestingly, given her current stance), and the court had deemed it
“not useful given the age of the minor”. Peter Jackson J disagreed:
“The child’s entitlement to a
voice is a fundamental procedural principle in our system. If he is old enough,
it will be his voice and his words. An adult voice will convey the younger
child’s point of view. Younger children are less able to articulate their
wishes, but their feelings may be more vivid than those of older children and
of adults, whose views we canvass without a second thought.” (para 96)
8.
A report from a court social worker, containing the child’s perspective,
would be fundamental to the decision of any English court, “faced with a
striking application of this kind (peremptory change of lifelong carer, country
and language)” (para 103). He therefore allowed the mother’s appeal on this
ground. He also allowed her appeal on the grounds contained in article 23(c)
(lack of service) and (d) (not giving the mother an opportunity of being
heard).
9.
The Court of Appeal dismissed the mother’s cross-appeal on article
23(a), allowed the father’s appeal on article 23(c) and (d), but dismissed the
father’s appeal on article 23(b): [2016] EWCA Civ 12, [2016] 1 WLR 2469. The
question of whether and how the child’s voice was to be heard in the
proceedings was a separate question from the weight to be given to his wishes
and feelings:
“… the rule of law in England and Wales includes the right
of the child to participate in the process that is about him or her. That is
the fundamental principle that is reflected in our legislation, our rules and
practice directions and jurisprudence. At its most basic level it involves
asking at an early stage in family proceedings whether and how that child is
going to be given the opportunity to be heard. The qualification in section
1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United
Nations Convention on the Rights of the Child 1989] relates to the weight to be
put upon a child’s wishes and feelings, not their participation.” (para 44)
10.
This court is not concerned with whether the decisions reached by the
trial judge and Court of Appeal in this particular case were right or wrong.
They may very well have been right. Nor is it concerned with the extent to which
the child’s right to be heard is a fundamental principle of the procedure in
the courts of England and Wales in cases relating to the future of children.
That is a very large question and views may differ as to precisely what the
effect is of the Court of Appeal’s judgment. This court is solely concerned
with whether we have any jurisdiction to entertain an appeal against the
decision of the Court of Appeal that the Romanian order should not be
registered and enforced in this country.
The jurisdiction question
11.
The jurisdiction of the Supreme Court of the United Kingdom is governed
by section 40 of the Constitutional Reform Act 2005. So far as material, this
provides:
“(2) An appeal lies to the
Court from any order or judgment of the Court of Appeal in England and Wales in
civil proceedings. …
(6) An appeal under
subsection (2) lies only with the permission of the Court of Appeal or the
Supreme Court; but this is subject to provision under any other enactment
restricting such an appeal.”
12.
The question, therefore, is whether the provisions of BIIR constitute an
“enactment restricting such an appeal” from the Court of Appeal or otherwise
override the provisions of the 2005 Act. This encompasses two questions: first,
what is the meaning and effect of the provisions of BIIR in European Union law;
and second, what is their effect upon the provisions of an Act of the United
Kingdom Parliament?
The Brussels II Revised Regulation
13.
By article 28 of BIIR, a judgment on parental responsibility which is
enforceable in the member state where it was given shall be enforced in another
member state when it has been declared enforceable there. (In the United
Kingdom, this means the part of the United Kingdom where it has been
registered.) By article 29, the application for such a declaration shall be
submitted to the court appearing in the list notified by each member state to
the Commission pursuant to article 68. The High Court of Justice - Principal
Registry of the Family Division has been notified for this purpose. Rule 31.4 of
the Family Procedure Rules 2010 provides that applications should be made to a
district judge (as had previously been indicated should be the case by Thorpe
LJ in In re S, above, at para 16). By article 31, the court applied to
must give its decision without delay and neither the person against whom
enforcement is sought nor the child is entitled to make any submissions about
it. Although the application may be refused for one of the reasons set out in
articles 22, 23 and 24, “under no circumstances may a judgment be reviewed as
to its substance” (article 31.3). In essence, therefore, this is intended to be
a speedy ex parte (and essentially administrative) process.
14.
The first opportunity for inter partes debate comes with the first
“appeal” under article 33. Under article 33.1, either party may appeal the
decision on the application for a declaration. Once again it is to be lodged
with the court notified under article 68 (article 33.2). The High Court of
Justice - Principal Registry of the Family Division has again been notified for
this purpose, but rule 31.15(1) of the Family Procedure Rules provides that the
appeal must be made to a judge of the High Court (again as advised by Thorpe LJ
in In re S). The appeal must be lodged within one month of service of
the declaration, or two months if the person against whom enforcement is sought
is habitually resident in a member state other than that where the declaration
was given (article 33.5). Once again, the need for speed is emphasised.
15.
Then comes article 34, the provision which is crucial to this case:
“The judgment given on appeal may
be contested only by the proceedings referred to in the list notified by each
member state to the Commission pursuant to article 68.”
16.
Article 68 provides that member states shall notify to the Commission
the lists of courts and redress procedures referred to (relevantly) in articles
29, 33 and 34 and any amendments thereto. The Commission is to keep the
information up to date and to make it publicly available. The reference to the
United Kingdom in its consolidated list of notifications reads as follows:
“The appeals provided for in article
34 may be brought only: …
- in United Kingdom, by a single
further appeal on a point of law:
(a) in England and Wales,
to the Court of Appeal.”
17.
On the face of it, therefore, the position under BIIR is quite clear.
There is to be a largely formal first stage when (no doubt usually) the
judgment is declared enforceable; there is to be a first “appeal” when the
enforceability decision can be contested; and the decision on that appeal can only
be contested by the notified proceedings. It follows that if there were no
notification under articles 34 and 68, as is the case with Cyprus and Malta,
there would be no appeal possible under article 34. The UK’s notification
expressly limits the “proceedings” to “a single further appeal on a point of
law” which must be made, in England and Wales, to the Court of Appeal. No
mention is made of a further appeal to the Supreme Court of the United Kingdom.
This too accords with the understanding of Thorpe LJ in In re S.
18.
The United Kingdom notification may be contrasted with the notification
given by Ireland under articles 33 and 71 of Council Regulation (EC) No 4/2009
on jurisdiction, applicable law, recognition and enforcement of decisions and
cooperation in matters relating to maintenance obligations (“the Maintenance
Regulation”). Article 33 provides that the decision given on appeal “may be
contested only by the procedure notified by the member state concerned to the
Commission in accordance with article 71”. Article 71 requires member states to
communicate to the Commission “the redress procedures referred to in article
33”. Ireland’s notification says this:
“An appeal on a point of law to
the Court of Appeal (it should be noted, however, that in accordance with the
provisions of the Irish Constitution, the Supreme Court shall have appellate
jurisdiction from a decision of the High Court if it is satisfied that there
are exceptional circumstances warranting a direct appeal to it. The Supreme
Court shall also have appellate jurisdiction from a decision of the Court of
Appeal if it is satisfied that certain conditions laid down in the Constitution
are satisfied.”
19.
It would appear, therefore, that at least one member state considers it
possible to provide for two tiers of appeal from the first “appeal”. It is not
for this court to say whether that is consistent with either article 34 of BIIR
or article 33 of the Maintenance Regulation. Whether or not the United Kingdom could
have provided for a further appeal to the Supreme Court, which some might think
necessary if only to resolve inconsistent decisions in different parts of the
United Kingdom concerning a Regulation which applies throughout, the fact remains
that it did not do so.
20.
Furthermore, the approach adopted by the United Kingdom in all previous
European instruments concerned with the free movement of judgments and judicial
cooperation within the European Union has been to provide for only one tier of
further appeal. The first of these was the Brussels Convention on Jurisdiction
and the Enforcement of Judgments in Civil and Commercial Matters (“the 1968
Convention”), concluded by the original six member states of the European
Economic Community in 1968, later amended to include the United Kingdom. The
courts and methods of appeal are specified in article 37 of the Convention
itself, in England and Wales the first appeal going to the High Court (or in
the case of a maintenance judgment, to the magistrates’ court), and that decision
being “contested only … by a single further appeal on a point of law”. As the
official Explanatory Report comments, the object of the Convention was to
ensure that “the judgment given on the appeal may be contested only by an
appeal in cassation and not by any other form of appeal or review” (OJ 1979 C
59, pp 1, 51-52). This was because “An excessive number of avenues of appeal
might be used by the losing party purely as delaying tactics, and this would
constitute an obstacle to the free movement of judgments which is the object of
the Convention”. Of course, this rationale only really applies to attempts by
the person against whom enforcement is sought, such as the mother in this case,
to resist enforcement, but what is sauce for the goose must also be sauce for
the gander.
21.
The 1968 Convention (along with its 1971 Protocol and the 1978
Convention on the accession of Denmark, Ireland and the United Kingdom to them
both) was given effect in United Kingdom law by the Civil Jurisdiction and
Judgments Act 1982. Interestingly, section 6(1) specifies that the single
further appeal on a point of law lies in England and Wales either to the Court
of Appeal or to the Supreme Court (formerly to the House of Lords) under the
“leap-frog” procedure provided for in the Administration of Justice Act 1969.
22.
Council Regulation (EC) 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (“the Brussels I
Regulation”) was designed to replace the 1968 Convention with directly
applicable Community legislation. The approach to avenues of challenge was the
same, save that instead of containing each country’s permitted avenues in the
text of the relevant articles, these referred to lists contained in Annexes to
the Regulation. Thus article 43.2 provided that the first appeal should be
lodged with the court indicated in Annex III, which for England and Wales was
the High Court of Justice (except for maintenance judgments); and article 44
provided that the judgment given on appeal might be contested only by the
appeal referred to in Annex IV, which was once again “a single further appeal
on a point of law”. The Civil Jurisdiction and Judgments Order 2001 (SI
2001/3929) specified, once again, that in England and Wales this would lie
either to the Court of Appeal or on a “leap-frog” appeal to the House of Lords
(article 4).
23.
In 1998, the Council approved a Convention extending the scope of the
Brussels regime to matrimonial matters. This took the same approach to the
methods of challenging enforcement applications as had the 1968 Convention. The
1998 Convention never became applicable but was the source of the 2000 Council
Regulation (EC) 1347/2000 on jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and in matters of parental responsibility
for children of both spouses (“the Brussels II Regulation”), which was the
immediate predecessor to the BIIR Regulation. This adopted the same method as
the Brussels I Regulation was to adopt some seven months later. Article 26.2
provided that the first appeal should be lodged with the court listed in Annex
II, which for England and Wales was the High Court of Justice. Article 27
provided that the judgment given on appeal might be contested only by “the
proceedings” listed in Annex III, which for the UK was “by a single further
appeal on a point of law”. However, the European Communities (Matrimonial
Jurisdiction and Judgments) Regulations 2001 (SI 2001/310), unlike the 2001
Order relating to the Brussels I Regulation, did not specify what was meant by
a “single further appeal on a point of law”, nor did the new Chapter 5 of the
Family Proceedings Rules 1991, introduced by article 29 of the Family
Proceedings (Amendment) Rules 2001 (SI 2001/821) to cater for the Brussels II
Regulation.
24.
However, BIIR, which replaced the Brussels II Regulation, adopts a
slightly different technique. Instead of describing the appeal processes in the
text, or in Annexes, it provides for each member state to communicate the
avenues of first appeal and further contestation to the Commission thus
enabling member states to change the processes without the need to revise the
Regulation. Unlike both the Brussels II and the Brussels I Regulations, BIIR
does not contain either in its main text or in Annexes a reference to a “single
further appeal on a point of law”. There is no express limit in article 34 to
the number of “proceedings” whereby the judgment on the first appeal may be
contested (although article 35 refers to “the appeal” under article 34 rather
than “an appeal”). This more flexible approach is also taken in the 2009
“Maintenance Regulation” (which removed maintenance obligations from the scope
of the Brussels I Regulation). While article 33 provides that the decision
given on first appeal may be contested only by “the procedure” notified in
accordance with article 71, article 71 requires member states to communicate
“the redress procedures referred to in article 33”.
25.
For what it is worth, the recast version of the Brussels I Regulation, Regulation
(EU) 1215/2012 of the European Parliament and of the Council, on jurisdiction
and the recognition and enforcement of judgments in civil and commercial
matters, also adopts this more flexible technique. Article 50 provides that the
judgment given on the first appeal can “only” be contested by an appeal where
the courts with which any further appeal is to be lodged have been communicated
to the Commission under article 75(c), which also refers to “courts”. The
United Kingdom has retained the previous reference (for England and Wales) to
an appeal either to the Court of Appeal or under the “leap-frog” procedure to
the Supreme Court.
26.
The purpose of all these instruments is that, save in very narrowly
defined circumstances, member states should recognise and enforce one another’s
judgments. The recitals to BIIR are typical: “The European Community has set
the objective of creating an area of freedom, security and justice, in which
the free movement of persons is ensured” (Recital 1). “The recognition and
enforcement of judgments given in a member state should be based on the
principle of mutual trust and the grounds for non-recognition should be kept to
the minimum required” (Recital 21). From the very outset, in 1968, member states
were anxious that there should not be too many avenues and methods of
challenging enforcement decisions, hence the restriction to “cassation” type
further appeals. It may well be, as Mr Richard Harrison QC has argued very ably
on behalf of the father, that the strict approach taken in the earlier
instruments has had to give way to the more flexible approach taken more
recently. It may well be that it would be open to the United Kingdom to do as
Ireland has done and notify the possibility, not only of “leap-frog” appeals
from the High Court to the Supreme Court, but also of appeals from the Courts
of Appeal in each part of the United Kingdom to the Supreme Court. The fact remains
that it has not done so.
27.
It is also true to say that the policy of the United Kingdom has not
been entirely consistent. In relation to civil and commercial judgments, the
1968 Convention, the Brussels I Regulation and the recast Brussels I Regulation
provide for the possibility of either an appeal to the Court of Appeal or a “leap-frog”
appeal to the House of Lords or Supreme Court (thus, it would appear, giving
the Supreme Court jurisdiction where the Court of Appeal has gone wrong in law
in an earlier case, but not if it does so in the current case). It has not been
possible to discover why a different approach, excluding the House of Lords or
Supreme Court altogether, was taken in relation to family matters in the
Brussels II Regulation and BIIR. It is known that the President of the Family
Division, the Solicitors Family Law Association, The Law Society, the Family
Law Bar Association, Reunite, Pact, and the Child Abduction Unit in the Office
of the Official Solicitor were consulted on the Commission’s revised draft text
of BIIR and that the Lord Chancellor’s Department continued to consult the
President of the Family Division, Thorpe LJ (Chairman of the President’s
International Committee), senior practitioners and Reunite during the
negotiations. But it is not known precisely how and why the decision was taken
to adopt the new approach in article 34 or how and why the United Kingdom
government chose to make the notification which it did. The Minutes of the
International Family Law Committee of the Family Justice Council held on 8
November 2004, at which the proposed BIIR was discussed, do not record any
discussion of these matters. But it is not surprising that the notification was
to the same effect as Annex III to the Brussels II Regulation, nor is it
unlikely that limiting the scope for multiple appeals was seen as an important
consideration.
28.
The fact remains that the United Kingdom did make the notification in
question. The question, therefore, is whether BIIR, combined with that
notification, is effective to restrict what would otherwise be the jurisdiction
of the Supreme Court under section 40 of the 2005 Act.
The effect of BIIR in United Kingdom law
29.
Mr Harrison faces the serious difficulty that article 34 clearly states
that the decision on appeal may “only” be contested by the notified
proceedings. On the face of it, therefore, as Mr Hugh Mercer QC submits on
behalf of the Ministry of Justice, if there were no relevant notification,
there would be no possibility of further challenge (as is apparently the case
with Cyprus and Malta). Mr Harrison seeks to avoid this problem in two ways.
30.
First, he argues that the notification, being an act of the executive
without any Parliamentary scrutiny or approval, cannot be an “enactment” for
the purpose of section 40(6). He is of course quite correct that the executive
has no power to amend or qualify primary or delegated legislation unless
Parliament has given it the power to do so. An example is the power given by
the United Nations Act 1946 to make Orders in Council without Parliamentary
scrutiny where necessary to comply with the United Kingdom’s obligations under
the United Nations Charter. Express language would be required for such a power
to permit the executive to abrogate fundamental rights such as the right of
access to a court: see A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2 AC 534. In fact, such delegated legislative powers are far more
frequently exercised by statutory instrument which has to be laid before, and
in some cases positively approved by, Parliament. It is also correct that the
power to amend primary legislation and otherwise to legislate for the purpose
of complying with the United Kingdom’s obligations in European Union law,
conferred by section 2(2) of the European Communities Act 1972, has to be
exercised by Order in Council or by orders, rules, regulations or schemes. The
notification was none of these things. By itself, therefore, it could not be
effective to amend or qualify section 40(2) of the Constitutional Reform Act
2005.
31.
However, we are concerned, not with the notification alone, but with the
combined effect of article 34 of BIIR and the notification. It is trite law
that European Regulations are directly applicable in all member states without
the need for further legislative implementation there: Treaty on the
Functioning of the European Union, article 288. It was, of course, necessary
for the United Kingdom to legislate to make this treaty provision the law in
the United Kingdom. This it did by section 2(1) of the European Communities Act
1972:
“(1) All such rights, powers,
liabilities, obligations and restrictions from time to time created or arising
by or under the Treaties, and all such remedies and procedures from time to
time provided for by or under the Treaties, as in accordance with the Treaties
are without further enactment to be given legal effect or used in the United
Kingdom shall be recognised and available in law, and be enforced, allowed and
followed accordingly; …”
32.
Furthermore, by section 2(4):
“(4) … any enactment passed or
to be passed … shall be construed and have effect subject to the foregoing
provisions of this section …”
33.
Thus, Parliament has decreed that its own legislation is to have effect
subject to the requirements of directly applicable European Union law. This
includes section 40(2) of the 2005 Act.
34.
Mr Harrison is therefore driven to argue that articles 34 and 68 of BIIR
are not, in fact, directly applicable. This is because they require “measures
of application” to be adopted by member states in order to be implemented. He
relies, in particular, on the cases of Azienda Agricola Monte Arcosu Srl v
Regione Autonoma Della Sardegna and Others (Case C-403/98) [2001] ECR I-103; [2002] 2 CMLR 14 and OBB-Personenverkehr AG v Schienen-Control
Kommission (Case C-509/11) [2014] 1 CMLR 51.
35.
His best example is the OBB case, which concerned a Regulation
(1371/2007) providing for rail passengers to be compensated for delay. Under
article 30, each member state was to designate a body responsible for enforcing
the Regulation. But the Regulation did not define the specific measures which
that body had to be able to adopt to secure compliance. The relevant body in
Austria, the Kommission, required the railway company, OBB, to alter the terms
and conditions of its tickets so as to comply with the compensation
requirements of article 17 of the Regulation. But under Austrian law the
Kommission did not have the power to do so. The Court held that article 30 by
itself did not give it the power to impose terms on the railway company. (I
note that it would be a completely separate question whether the passenger
could rely on the direct effect of the Regulation in order to claim the
compensation which it prescribed.)
36.
The Azienda case concerned Regulation No 797/85, which provided
for certain payments to farmers “practising farming as [their] main
occupation”. Member states were required to define what that meant, both for
natural and non-natural persons. The relevant Italian law defined it for
individuals and certain other entities, such as farming co-operatives, but did
not provide for limited companies at all. The Court held that, as the
Regulation required a definition before it could be operated, a limited company
conducting farming operations could not make claims under the Regulation. The
principle was stated thus:
“26. In this respect, although,
by virtue of the very nature of regulations and of their function in the system
of sources of Community law, the provisions of those regulations generally have
immediate effect in the national legal systems without its being necessary for
the national authorities to adopt measures of application, some of their
provisions may nonetheless necessitate, for their implementation, the adoption
of measures of application by the member states.”
Thus, says Mr Harrison, as articles 34 and 68 of BIIR required
further measures of implementation in the form of notifications by the member states,
they cannot be directly applicable.
37.
The simple answer to this argument is that articles 34 and 68 are not
comparable with the articles under consideration in these two cases. Article 34
does not depend for its implementation upon the member state’s choice of avenue
of appeal. If the member state fails to notify any such avenue of appeal, then
none will exist. But in any event, the member state in question did make a
relevant notification. There is nothing in these cases to suggest that, if the
required measures of implementation are adopted in a member state, the
Regulation is not directly applicable there (and indeed effective to create
individual rights). The farmers who were covered by the Italian definition
would no doubt have been able to claim their rights under the Regulation.
38.
Mr Harrison’s final argument is that the notification cannot be
effective if it does not give an accurate picture of the appellate rights under
United Kingdom law. Article 68 requires member states to supply information as
to the position in their country; it does not permit them to change the
position as it would otherwise be. However, so to interpret article 68 would
run counter to the purpose of the provisions relating to routes of challenge
which date back to the 1968 Convention and continue through all the European
instruments discussed earlier. This is to limit the avenues and methods of
appeal so as to avoid delays and manoeuvrings which will defeat the object of
effective enforcement of one another’s orders. This object may have become
slightly diluted in the more recent instruments, but the Regulation clearly
contemplates the possibility that Member States will make notifications which cut
down the routes of appeal which would otherwise be available.
Conclusion
39.
I am therefore satisfied that the Supreme Court of the United Kingdom
has no jurisdiction to entertain an appeal in this case. The appeal which has
been lodged should therefore be struck out.
