Case Watch: A Tale of Two European Courts

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

The citizens of the 28 countries of the European Union are in the unusual position of having access not just to one, but to two regional courts: the Court of Justice of the European Union (CJEU), based in Luxembourg, and the European Court of Human Rights (ECHR), based in Strasbourg. The former adjudicates questions of European Union law—essentially whether national governments are properly implementing EU-wide laws passed in Brussels. The latter deals with violations of individual rights guaranteed by the European Convention of Human Rights, covering all the 47 members of the larger Council of Europe.

But what happens when the two meet? On April 8, the European Court of Human Rights (ECHR) ruled in the case of Dhahbi v. Italy that brought the two systems together. The applicant, accusing the Italian government of discrimination, had been refused a hearing at the CJEU by the Italian court system; so he took his case before the Strasbourg court instead, and won.

But while the ECHR concluded that the applicant had indeed suffered discrimination, it did so only in terms of a violation of his rights under the European human rights convention, and made no reference to applicable EU law. Nor did the court clearly state that the Italian Court of Cassation should have sent the question to the Luxemburg-based CJEU.

The applicant in the case, Bouraoui Dhahbi, is a Tunisian national living in Italy on a work permit and with lawful residence. He got insured by the Italian Social Security Agency and paid contributions. Dhahbi was married and had four under-age children. He applied to the Agency for the family allowance, claiming he was eligible under the Euro-Mediterranean Agreement between the European Union and Tunisia.

Article 65 of the Agreement entitles Tunisian workers and any members of their family to equal treatment with EU national workers in “the branches of social security dealing with sickness and maternity benefits, invalidity, old-age and survivors' benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits”.

But Dhabhi was refused family allowance because he was a Tunisian, not Italian national. He appealed, arguing that the family allowance was “social security” under the Euro-Mediterranean Agreement and thus he was entitled to be treated equally with an Italian worker. The Italian authorities argued the benefit was “social assistance”, and so outside the scope of the Agreement. Dhabi rejoined that this categorization referred to national law, not the criteria developed by the CJEU.

His case eventually reached the Italian Court of Cassation, from which no appeal lies. He asked the court to refer a preliminary question to the CJEU to clarify whether under the Euro-Med agreement a Tunisian worker could be denied the family allowance payable to Italian workers.

Article 267 of the Treaty on the Functioning of the European Union provides that the CJEU “shall have jurisdiction to give preliminary rulings…where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.”

The Italian Court of Cassation has referred questions to the CJEU in other cases, such as CILFIT and Costa and Cifone. However, it did not refer any questions on Dhabi’s case to the CJEU.

EU law provides no remedy for an individual in Dhahbi’s situation: he could not appeal directly to the CJEU. He decided to take his case to the Strasbourg court. He complained under Article 6(1) of the European Convention on Human Rights (right to a fair hearing) over the Court of Cassation’s failure to provide the legal reasoning for its refusal to refer his case. He also complained under Article 14 (prohibition of discrimination) that Italian social security law violated the principle of equality.

The ECHR ruled that Article 6(1) required Italy's Court of Cassation to justify its refusal to refer questions to the CJEU, noting that the simple refusal did not make reference to the CJEU jurisprudence. Therefore, it found a violation of Article 6(1).

Under Article 14, Dhahbi alleged he was discriminated on grounds of nationality by the Italian rules on family allowance. He was treated differently from EU citizens and from refugees who were in the same financial and family situation as him, by treating the allowance as “social assistance.”

The court noted that Dhahbi was paying taxes and social insurance contributions as an EU citizen would, thus contributing to country’s resources. The court concluded that the refusal to pay family allowance was based solely on his nationality. Thus, the differentiated treatment of the government fell under Article 14 with Article 8 (right to family life) and was disproportionate.

By its Article 14 ruling, the ECHR seems to resolve the entitlement of Tunisian workers like Dhabhi to this Italian allowance. But it does so entirely under Strasbourg equality rules and without addressing the interpretation of the Euro-Med Agreement. It did not even hold that the Court of Cassation ought to have referred questions to the CJEU.

It was the substance of Dhabhi’s argument—equality between Tunisian and Italian workers—that allowed the ECHR to find in his favor without deciding EU law. If he had focused only on the claimed violation of his free trial rights inherent in the refusal to allow his appeal, the ECHR would have needed to engage with the question of whether Italy’s interpretation of European law violated his human rights – potentially requiring a substantial change in applicable national law. However, the Court would likely have preferred such issues to be determined by the EU law courts, for example, by the Italian courts reopening the case.

The case demonstrates the workings of the current relationship between the two systems of law. The EU law system, represented by the Court of Cassation, was found by the ECHR to have failed. But the determination of failure was made only by reference to ECHR rules.

The relationship between the Strasbourg and Luxemburg Courts may soon change. The draft Agreement on Accession of the European Union to the European Convention on Human Rights has been referred to the CJEU to decide if it complies with the EU Treaties. The case was heard by the full CJEU on 6 May 2014. If the Agreement is approved, its main change will be to allow for human rights claims against the European Union institutions.

The accession agreement may bring closer the creation of a single European legal space and greater consistency in the application of human rights on the whole European continent. However, it has limits: it will not provide for a right of individual appeal to the CJEU; another case similar to Dhabhi would still have to be brought before the Strasbourg court in the same way.

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A solution is to complain to the Commission about the failure to refer. If the commission takes no action, seek judicial review in the CJEU of the commission's refusal so the point arises for decision in the CJEU

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