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Jean-Yves Gilg

Editor, Solicitors Journal

Leveraging Europe

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Leveraging Europe

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Richard Gordon QC explains the procedural opportunities offered by EC law in mounting a judicial review challenge

Judicial review has undergone profound transformation over the past 30 years. This article addresses judicial review procedure from the distinctive perspective of EC law requirements.

Background principles

Procedural rules for judicial review are usually required to be interpreted more generously in an EC context so as to enable the rule in question to accord with EC rights 'if such a construction is possible' (see Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135).

Further, the judicial review procedure must comply with the EC general principles of effectiveness and equivalence. The ECJ formulated these principles in Case 33/76 Rewe-Zentralfinanz eG et Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989 :

'In the absence of Community rules, it is for the domestic system of each member state to designate the courts having jurisdiction and the procedural conditions governing actions at law intended to ensure the protection of the rights which subjects derive from the direct effects of Community law; it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature...

'The position would be different only if these rules made it impossible in practice to exercise rights which the national courts have a duty to protect.'

Thus, the rules relating to judicial review in EC cases must be non-discriminatory (by comparison with comparable rules in non EC cases) and they must not make the enforcement of EC rights impossible in practice.

Standing

In practice, the Administrative Court has not denied standing to individual claimants asserting rights under EC law. This is exemplified by cases such as R v Attorney General, ex p ICI [1987] 1 CMLR 72, where Woolf J (and, subsequently, the Court of Appeal) accorded standing to ICI in seeking to challenge, by judicial review, the grant of state aid to one of its commercial rivals.

In R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1 (at 2D) a challenge founded on the EC prohibition of sex discrimination, Lord Keith observed:

'In my opinion it would be a very retrograde step now to hold that the EOC has no locus standi to agitate in judicial review proceedings questions related to sex discrimination which are of public importance and affect a large section of the population.'

Mr Rees-Mogg had the requisite standing to challenge the UK's ratification of the Maastricht Treaty (R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1993] 3 CMLR 101). Similar observations were made by Lord Diplock in Fleet Street Casuals (R v IRC, ex parte National Federation of Self-Employed and Small Businesses [1982] AC 617) above at 644E. In that case, though, the claimants were denied standing on (presumably) discretionary grounds. In R v Her Majesty's Treasury, ex p Smedley [1985] 1 QB 657, a taxpayer sought to establish that a government undertaking to pay a contribution to the European Community, laid before Parliament in the form of a draft Order in Council, was ultra vires. Slade LJ said:

'I do not feel much doubt that Mr Smedley, if only in his capacity as a taxpayer, has sufficient locus standi to raise this question by way of an application for judicial review. On the present state of the authorities, I cannot think that any such right of challenge belongs to the Attorney-General alone.'

It would, therefore, seem that there is a right to ventilate EC points even where the claimant is not asserting any EC right for himself. To deny, for example, a social action group from pursuing such a case on the ground of lack of standing would, in practice, make the enforcement of particular EC rights more difficult and might, therefore, fail sufficiently to deter violations of EC law thereby breaching the principle of effectiveness (see Geddes 'Locus Standi and EEC Environmental Measures' 4 JEL (1992) 29).

Delay

Under CPR Pt 54.5, claims for judicial review must be brought promptly and, in any event, within three months of the date that grounds for the claim first arose. Claims are not necessarily brought in time because they are instituted within three months of the relevant public law default (see R v Independent Television Commission, ex p TV NI Ltd (1991) The Times, 30 December 1991).

It is unlikely that the outer limit of three months would violate EC law. For example, it has been suggested that the three-month period for bringing judicial review proceedings in Ireland is, at least in principle, reasonable but that if the requirement of promptness meant that the period was reduced to less than two months that might be regarded as unreasonable (see per Advocate General Mischo in Case C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269, 4288).

However, the promptness requirement can produce uncertainty and could, at least in individual cases, be in breach of EC law. Its potential incompatibility with EC law (and ECHR law) was the subject of judicial comment in R v Hammersmith and Fulham London Borough Council, ex p Burkett [2003] 1 WLR 1593 (per Lord Steyn at para 53).

More recently, the Court of Appeal has expressly endorsed the promptness requirement. In Hardy v Pembrokeshire County Council and Pembrokeshire Coast National Park Authority [2006] EWCA Civ 240, the Court refused permission to appeal the refusal of permission to apply for judicial review of an environmental challenge to the grant of planning permission brought (materially) just within the three-month period. (Most of the decisions were made more than three months prior to the application for permission to seek judicial review, but the court implicitly accepted that the question in respect of the last decision was whether the proceedings to challenge it had been brought promptly.) In refusing permission, Keene LJ observed, first, that the promptness requirement had been accepted by the European Court of Human Rights in a case not cited to the House of Lords in Burkett (see Lam v UK Application No 41671/98, 5 July 2001). Secondly, he pointed out that the Strasbourg Court has held that legal certainty does not connote 'absolute certainty' (see Sunday Times v UK [1979-80] 2 EHRR 245, para 49) and that this is especially applicable to a procedural rule in applications seeking judicial review where the degree of promptness required will vary from case to case. He also referred to the use of the concept of promptness in the ECHR itself (see Arts 5(3) and 6(3)).

However, Hardy was not decided on EC law principles. It is true that, even in an EC context, domestic courts are reluctant to allow the promptness requirement for judicial review to be bypassed by bringing what are, in reality, out-of-time challenges to earlier decisions under the guise of a challenge to a later decision (see R (The Noble Organisation Ltd) v Thanet District Council [2005] EWCA Civ 782). In some instances, though, it may be that a challenge to a later decision should be permitted '“ albeit that it could have been brought over an earlier decision '“ on the basis that such challenge involves the current application of a substantive principle of EC law that would be defeated if it were held to be time-barred. Thus, in Case C-201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723, a challenge succeeded to a continuing failure to make reparation for a breach of EC law by failure to conduct an environmental impact assessment at the time of granting planning permission even though the proceedings were brought many years after the grant of planning permission and even though the underlying planning permission was not, itself, the subject of
challenge.

Interim relief

EC judicial review cases will differ from the normal rules where: (i) there is an application to suspend the effect of domestic legislation and/or (ii) there is a challenge to underlying EC legislation.

As to suspending domestic legislation, the relevant principles were laid down in R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 All ER 70. Lord Goff observed:

'[T]he court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.'

In Case C-465/93 Atlanta Fruchthandelsgesellschaft mbH v Bundesamt fur Ernahrung und Forstwirtschaft [1995] ECR I-3761 (at paras 39 and 46), the ECJ held that, when determining whether or not to suspend a national measure founded on an allegedly invalid Community rule, national judges must apply the conditions required by the ECJ in claims under Arts 242 and 243 EC. In summary, these are that (in context), the Administrative Court is '“ before granting interim relief in such a case '“ required to:

(a) entertain 'serious doubts' as to the validity of the Community measure and refer relevant questions to the ECJ unless the contested measure is already before that court;

(b) respect relevant decisions of the ECJ or the CFI as to the legality of the measure or any successful interim relief application brought before those courts;

(c) decide whether the claimant has established 'urgency' and a threat of 'serious and irreparable damage'; and

(d) take due account of the 'Community interest' before granting interim relief.

Disclosure and cross-examination

In EC challenges, the resolution of factual issues may (unlike normal judicial review) require disclosure or cross-examination in many cases.

In Cases C-65 and C-111/95 R v Secretary of State for the Home Department, ex p Shingara and Radiom [1997] ECR I-3343, for example, the claimants had been refused entry into the UK on the ground of national security. In his opinion, Advocate General Ruiz-Jarabo Colomer suggested that the principle of effectiveness required that, among other things, 'there must be no restriction on the court's examination of the case'. He elaborated upon this by suggesting that the court's examination must extend 'to the merits of the dispute' by being able to determine 'whether or not the decision was in harmony with the principle of proportionality and other legal rules'. Unless this was so, the principle of effectiveness would be breached.

Conclusion

Claimants bringing judicial review challenges should be aware of the potential of EC law not merely for promoting substantive areas of challenge, but also for reducing some of the procedural constraints that can make judicial review, in practice, more difficult to obtain than private law relief. In most cases, EC law '“ where available '“ is likely to be of greater assistance to claimants in avoiding procedural obstacles than the other public law jurisdictions (Human Rights Act 1998 and purely domestic challenges).

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