Can we litigate strategically in the Court of Justice of the European Union?

14 August 2015

By Adam Weiss

A head-scratching, confessional introduction

Two years ago, I was asked at my interview for this job about the Court of Justice of the EU (“the CJEU” or “Luxembourg”¹). I could hear the edge in my soon-to-be colleagues’ voices: the fact that the CJEU had never decided a Roma rights case² was a source of anxiety. That anxiety was partially relieved a few weeks ago when the CJEU delivered a judgment providing guidance to a Bulgarian national court about how to analyse a practice reeking of racism. (A power company had put individual electricity meters on seven-metre-high poles in a Roma neighbourhood to make sure they could not be tampered with, instead of installing them at the normal, reachable height.)

The relief was only partial because we played no role in the case. More long-standing colleagues told me that we were asked to take the case on a few years ago and we said no. They winced when they said it.  I guess they were hoping I wouldn’t let us do something like that. But I can’t promise we won’t let the next one pass us by; maybe we have already. There are so many violent, perverse, and depressing acts of discrimination committed against Roma that we simply cannot take on all cases that come our way – that is why we have a strategic litigation practice we are working hard to define clearly, and not a legal aid practice. Anyway, I spent several years working in the human rights legal sector in the UK where I developed an allergy to big egos (others’ and my own): there is more than enough work advancing Roma rights to go around, and we should rejoice when fantastic colleagues like those at the Open Society Justice Initiative (who supported this case) offer us their shoulders to stand on.

The reality is that we can never predict which cases will get to Luxembourg.  Even those legal experts – the professional predictors you should know by now I don’t like – would have a hard time telling you which cases will get there, because it usually depends on someone else.

How do you get from Budapest to Luxembourg?  (Ask a Judge)

You don’t just go to Luxembourg. The usual way cases about race discrimination and other human rights issues get to the CJEU is when a national judge in an EU state has to answer an EU law question in order to decide the case. That judge can send (“refer”) questions to the CJEU and get a “preliminary ruling” to help her. There is specific European Union legislation prohibiting race discrimination and so a lot of questions that might be referred (e.g. about the shift of the burden of proof, or the definition of “harassment”). And there are a lot of acts of discrimination against Roma. So shouldn’t we be getting judges to send cases there all the time?

The problem is that judges are usually not required to refer cases. The ERRC (or the lawyers we support) regularly ask judges to make references and they regularly refuse. And there is nothing we can do about it. Courts against which there is no further judicial remedy have to make a reference³ if there is an EU law question that it is “necessary” to resolve. Challenging a supreme court for failing to make a reference is possible, but time consuming, expensive, and unusual. And it is mainly the work of organisations whose main focus is the rule of law; our focus is combating discrimination and segregation. Anyway, many cases fall apart before they reach the last instance.

So how can we use the preliminary ruling procedure strategically? To answer that, I ask two questions that relate to the ERRC legal department’s usual way of defining and taking forward strategic cases. 

1. Whether getting the case referred to Luxembourg will contribute to a theory of change (i.e. changing the behaviour of defendants to contribute to the elimination of discriminatory structures). At this stage, it feels like getting any Roma rights case to Luxembourg would be a victory for Roma rights. I am reluctant to subscribe to such a theory, because it carries risks; but the fact is that there are too few cases where Roma successfully rely on the Race Equality Directive⁴ or other provisions of EU law and sending cases to Luxembourg will clarify strong equality legislation and put Roma rights issues in the spotlight.
   
   The chance of a Black Swan is there, and the downside risks (given how bad things are for Roma rights) are minimal.  And theories of change abound here. For example, we have yet to see a national court impose effective sanctions to desegregate schools; national courts in Europe usually say it is not their role to tell public authorities how to fix the problem, and so judgments finding segregation do not eliminate the underlying structures. The schools stay segregated.
   
   Luxembourg could break the impasse with a strong interpretation of Article 15 of the Directive, which says that sanctions for discrimination must be “effective, proportionate and dissuasive”. In the worst case, they will just confirm what is already happening, without stopping national courts from being more creative. There is also the fact that a case in Luxembourg will apply across Europe and potentially change the behaviour of many more officials. It will fuel future cases and advocacy.
    
2. Whether we have the right kind of case. If you have being following our work, you know our strategic litigation plane, a tool we developed to help us talk through whether we have the right kind of case to achieve the change we want:

If a judge is going to refer our case to Luxembourg, we had better be in the top half of the plane: preliminary rulings are for innovative arguments. The upper left corner is always a danger zone for us because of the potential for a conflict between the strategic aims of the cases and the litigants’ wishes. 

We manage that by creating “incubators”: nurturing a significant number of cases in the hope that one will emerge – here, as a reference to the CJEU. We cannot wait for the perfect case, because it will probably fall apart.  What we can do is develop draft questions for a reference and try to get lawyers we work with to pose them in a large number of cases. There may be risks to that approach, but for the time being, getting Roma rights cases to Luxembourg is a good thing, full stop.

But that is also a time-consuming approach that depends on factors outside our control.  We need to move cases to the right as much as possible.  Actio popularis litigation⁵, situation-testing challenges, and activist-driven cases provide litigants whose interests are closely aligned with the strategic goals of the litigation.  We can design cases with those litigants to force judges to confront fruitful EU law issues. 

Our colleagues at the Chance for Children Foundation in Hungary, for example, have a thriving actio popularis school-segregation practice and can focus courts’ attention to the problem of remedies. The notion of racial harassment (a form of discrimination which does not require you to find “comparator” non-Roma) is underdeveloped; we can and should design cases with activist-litigants to force courts to ask the Court of Justice to tell us when conduct is “unwanted” or is “related to racial or ethnic origin”. Given how little the notion of harassment⁶ is used and understood, any case on the subject at European level would be helpful. Roma activists in France or Italy suffering hate speech from public officials combined with a wave of evictions could be the perfect case, with committed plaintiffs to help us get answers.

There’s an easier way: BUD à PRG à SXB à BXL à LUX

But maybe we already did get our first case to Luxembourg!  Last September the European Commission announced it would be taking infringement proceedings against the Czech Republic for school segregation. Slovakia and Hungary are next. The ERRC took the national case in the Czech courts, which led us to the European Court of Human Rights,⁷ which first established that school segregation existed in the Czech Republic; we have been eagerly pressing the Commission to start infringement proceedings against the Czech Republic. But that’s not really our case either: it will be called Commission v Czech Republic and the ERRC cannot play any formal role. Is that strategic litigation?

Well, more like strategic litigation-advocacy. Infringement proceedings have a strong theory of change behind them: they can result in painful financial sanctions⁸ and put segregation or other forms of discrimination in harsh relief. Indeed, the Commission’s proceedings against the trio of committed Central European segregationists seem like a Black Swan event for them (which is the essence of what I think strategic litigation is). The European Commission is alone able to bring such litigation, but it will never police Member States’ violations of the EU law rights of Roma by itself.

Our cases at national level and the European Court of Human Rights light up the runway. Our communications are fuel in the tank. They have to fly the plane that last stretch from Brussels to Luxembourg, though. The real behaviour change we are bringing about here is on the part of the Commission – getting them to use their powers to further the cause of Roma emancipation. Once we have done that, our theory of change has become theirs.

Or take a fighter jet (“Just sue the EU!”)

We usually use that language of “behaviour change” for our targets – the segregationists. That last word does not really fit the Commission bureaucrats who seem to have no reason, and little power, to oppress Roma. Enforcing EU anti-discrimination law is their job. They bang on about National Roma Integration Strategies. In the ERRC’s world-vision, where the discriminators are officials at national and local levels, the Commission is a natural ally and counterweight – our movement’s friend. We may want to change their behaviour, but only in the way we would want to get a friend to lend us her car so we can move house. You ask nicely; you don’t sue.

And how would we sue the Commission or any other EU institution in the CJEU anyway? EU law⁹ allows individuals to bring direct actions to the CJEU to challenge acts of EU institutions addressed to them or “of direct and individual concern to them”. But a failure to take infringement proceedings would certainly not meet this standard. There is buzz, especially after the European Ombudsman’s recent opinion, about whether the Commission is doing enough to make sure EU funds are not being spent by national authorities in ways that violate fundamental rights (such as EU-funded segregated schools). But our conclusion so far is that suing the Commission is not the best way to get our allies to act; in any event it does not even seem legally possible. For the time being at least, theories about changing our friends’ behaviour in Brussels will take us to meeting rooms, not the CJEU’s courtroom. 

                                                                 * * *

There are three things we need to do right now:

1. We have to develop questions for a reference whose answers can do little harm to our movement but which are potentially catastrophic for segregationists: What are “effective, proportionate and dissuasive” sanctions? How should national courts deal with complaints by Roma that hate speech, combined with forced evictions, amount to harassment? And we need to get the lawyers fighting individual battles for Roma to ask courts to send those questions to the CJEU. 
2. We have to build cases with litigants who interest is to secure a strategic judgment (NGOs, testers, activists) and which force these questions on national courts. 
3. We have to build the Commission’s infringement cases for them and sell them to our allies in the Berlaymont. In Luxembourg, more than in any other court, the gains we make for the Roma rights movement depend on luck, but it is luck we make for ourselves.

Endnotes:

1. _{^{That’s where the Court is located.}} 

2. _{^{On 31 January 2013 the Court delivered a judgment in a Roma rights case finding it lacked jurisdiction (because the equality body that referred the case was not a “court or tribunal”).  It is the same Bulgarian case that returned to the Court and is described directly below (about the power company).}}

3. _{^{Article 267 of the Treaty on the Functioning of the European Union, third paragraph.}}

4. _{^{Directive 2000/43.}}

5. _{^{These are cases taken in the public interest (in our case, by an NGO), as opposed to cases taken by litigants seeking to vindicate their own personal rights.}} 

6. _{^{Article 2(3) of Directive 2000/43.}}

7. _{^{That’s a different Court from the CJEU.  It is based in Strasbourg and is an institution of the Council of Europe, not the European Union, something British newspapers often get wrong.  There is a right of individual petition to the European Court of Human Rights; you can take a case there in certain circumstances after going through the national courts.  The case we took was D.H. and others v the Czech Republic.}}

8. _{^{Article 260(2) of the Treaty on the Functioning of the European Union allows the CJEU to impose “lump sum” penalties.  The Commission has a formula it uses to calculate the penalties it asks for, in the hundreds of euros per day that the infringement continues.}} 

9. _{^{Article 263(4), Treaty on the Functioning of the European Union.}}