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Published online by Cambridge University Press: 04 January 2016
This article examines the application of the right of access to a court as guaranteed by Article 47 of the EU Charter of Fundamental Rights in cases involving State immunity. First, it considers the scope of the right of access to a court under the Charter, including its relationship with Article 6(1) of the European Convention on Human Rights, and the ways in which the Charter is given effect within UK law. Second, the article critically examines the Court of Appeal’s application of both Article 6(1) ECHR and Article 47 of the EU Charter in Benkharbouche v Sudan, a case brought by domestic service staff of foreign embassies based in London against Sudan and Libya respectively. It argues that the Court’s statement that the right of access to a court is not engaged in immunity cases because the court has no jurisdiction to exercise – an analysis which relies on Lord Millett’s reasoning in Holland v Lampen-Wolfe and the dicta of Lords Bingham and Hoffmann in Jones v Saudi Arabia – is erroneousness: the right of access to a court is always engaged in immunity cases because immunity does not deprive the courts of jurisdiction ab initio. The article also argues that contrary to the Court’s reasoning on Article 47 of the EU Charter, the right of access to a court does not need to have horizontal effect in a private between private parties: the right is always enforced against the forum State; it has indirect, not horizontal, effect.
2 See, most recently, Jones v United Kingdom (2014) 59 EHRR 1, paras 188–189.
4 Benkharbouche v Embassy of the Republic of Sudan  EWCA Civ 33.
5 The foreign State is treated a private entity for the purpose of the employment claim. The Employment Appeals Tribunal reached the same conclusion as the Court of Appeal:  1 CMLR 40, and for comment Sanger, A, ‘The State Immunity Act and the Right of Access to a Court’ (2014) 73(1) CLJ 1CrossRefGoogle Scholar, (2014) 84 BYBIL 444–50.
6 Final recast version of the Charter: OJ 2010 C/83/389 (hereinafter ‘EU Charter’).
7 Preamble, EU Charter, ibid.
8 Art 52(7) EU Charter, art 6(1) TEU.
9 OJ 2007 C303/1 (entered into force 1 December 2009).
10 Art 51(1) EU Charter.
11 Case C-617/10 Åklagaren v Åkerberg Fransson  STC 1905, para 21.
12 The UK ratified the Treaty of Lisbon by enacting the European Union (Amendment) Act 2008, which amended section 1(2) of the European Communities Act 1972 to include the Treaty of Lisbon as one of the list of treaties that must be given effect in UK law.
13 Section 2(1) EC Act stipulates that they ‘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’.
14 It is not clear that all Charter rights have direct effect, or which rights have direct effect and which require further legislation before they can be applied by domestic courts. In Association de Mediation Sociale  ECR I-000, the CJEU ruled ‘it is clear from the wording of art 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law’ (para 45). The Court did not clarify what it meant by fully effective, but it did distinguish art 21 of the EU Charter on the basis that it ‘is sufficient in itself to confer on individuals an individual right which they may invoke as such’.
15 T Tridimas, The General Principles of EU Law (OUP 2006) 5.
17 Case 11/70 Internationale Handelsgesellschaft v Einfuhr-und Vorratsstelle Getreide  ECR 1125.
18 Case C-144/04 Mangold v Helm  ECR I-9981.
21 R v Secretary of State for Employment, ex p Equal Opportunities Commission  1 AC 1.
22 B de Witte, ‘Direct Effect, Primacy, and the Nature of the Legal Order’ in P Craig and G De Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011) 339. See also Dashwood, A, ‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?’ in Barnard, C (ed), Cambridge Yearbook of European Law, vol 9 (2007) 8Google Scholar.
24 Case C-176/12 Association de Mediation Sociale  ECR I-000 (hereinafter ‘AMS’).
25 AMS, ibid paras 43 and 45.
28 Åklagaren (n 11) para 19.
29 Case C-334/12 RX, RX-II Réexamen Arango Jaramillo and Others v EIB, para 42; Case C-279/09, DEB Deutsche Energiehandels und Beratungsgesellschaft mbH v Bundesrepublik Deutschland, para 32; Case T-360/10, Tecnimed Srl v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), para 33.
30 Although note that art 52(3) of the EU Charter also states that ‘this provision shall not prevent Union law providing more extensive protection’, which means that the right of access to a court under the EU Charter could be more extensive than under the ECHR if Union law so requires.
31 Golder v United Kingdom (1979–80) 1 EHRR 524, para 33.
34 Art 51, EU Charter.
35 As Garnett, R, ‘State and Diplomatic Immunity and Employment Rights: European Law to the Rescue?’ (2015) 64(4) ICLQ 783, 816CrossRefGoogle Scholar has noted ‘employees will be encouraged to circumvent State immunity restrictions under domestic law by pleading breaches of EU regulations without the need (in the UK context at least) of having first to comply with the interpretative requirement of section 3 of the HRA’.
36 The Working Time Regulations incorporated Directive 2003/88/EC, OJ  L 299/9 into English law.
37 Benkharbouche (n 4) para 4.
38 Directive 2000/43/EC, OJ  L 180/22.
39 Benkharbouche (n 4) para 54.
41 Holland v Lampen-Wolfe  3 All ER 833, 846–847.
42 Jones v Saudi Arabia  1 AC 270, 298, para 64.
43 ibid para 14. cf the Court of Appeal decision in Jones v Saudi Arabia  QB 699, 747, para 82 (‘In the light of the reasoning in Al-Adsani, there can be no doubt (contrary to dicta of Lord Millett in Holland v. Lampen-Wolfe at p.1588) that article 6(1) is also prima facie engaged in a case such as the present.’).
45 Benkharbouche (n 4) para 16.
47 Belhaj and another v Straw and others (United Nations Special Rapporteur on Torture and others intervening)  EWCA Civ 1394,  2 WLR 1105, 1156, para 122.
48 [EWHC] 3846 (QB) (Leggatt J) para 90.
50 Civil Procedure Rules, rule 7.2 (prior to 26 April 1999, a ‘writ’ had to be served on a defendant). See also Canada Trust Company v Stolzenberg (No 2)  1 AC 1, 21–22.
51 See Civil Procedure Rules, rule 11. A defendant may apply to the court for an order declaring that it has no jurisdiction and in the alternative, should not exercise any jurisdiction that it may have.
52 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium)  ICJ Rep 3, 24–5, para 59. See also Yang, X, ‘State Immunity in the European Court of Human Rights: Reaffirmations and Misconceptions’ (2003) 74 BYBIL 333, 340Google Scholar.
53 See Article 6 of the UN Convention on Jurisdictional Immunities of States requires State parties to ‘give effect to State immunity … by refraining from exercising jurisdiction in a proceeding before its court against another State’ (emphasis added) (not in force).
54 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium)  ICJ Rep 3, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, para 71. See also para 59 of the judgment (n 52).
55 O'Keefe, R, ‘Decisions of British Courts during 2006 Involving Questions of Public International Law’ (2006) 77 BYBIL 458, 516Google Scholar.
56 See section 2 SIA and art 7, UN Convention on Jurisdictional Immunities of States and Their Property; Yang (n 52) 340 and O'Keefe ibid 516.
57 Such an interpretation would run counter to the understanding that ‘[j]urisdiction is an aspect of sovereignty: it refers to a state's competence under international law to regulate the conduct of national and juridical persons’. Crawford, Brownlie's Principles of Public International Law (OUP 2012) 456. Jurisdictional Immunities of the State (Germany v Italy: Greece intervening)  ICJ Rep 99, 123, para 57.
59 See Jones v United Kingdom (n 2) paras 188–189 and Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57.
60 Al-Adsani (2001) 123 ILR 24, 40, para 54. See also Kalogeropoulou v Greece (2002) 129 ILR 537, 546; Fogarty v United Kingdom (2001) 123 ILR 53, 65, para 34; McElhinney v Ireland (2001) 123 ILR, 85, para 35; Cudak v Lithuania (2010) 51 EHRR 15, para 60; Sabeh El Leil v France (2012) 54 EHRR 14, para 52; Wallishauser v Austria, App No 156/04, 17 July 2012, para 64; Oleynikov v Russia (2013) 57 EHRR 15, para 60; Jones v United Kingdom (n 2) para 188.
61 See eg art 5, Convention against Torture and Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)  ICJ Rep 422, 451, para 75 and 454–461, paras 89–117.
62 A State may also be under an obligation to grant immunity pursuant to a treaty obligation (that is not reflective of customary international law). It is not clear whether this would be sufficient to amount to a proportionate restriction on the right of access to a court. See discussion in Section III.C.2. below.
63 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening)  ICJ Rep 99, 123, para 55 (‘States sometimes decide to accord an immunity more extensive than that required by international law’).
64 Compare to the argument that the alleged violation of a jus cogens norm creates an exception to State immunity. This argument has now been rejected by a number of domestic and international courts: Jurisdictional Immunities of the State (Germany v Italy)  ICJ Rep 99, 140–2; Jones v United Kingdom (n 2) paras 197–198; Jones v Saudi Arabia  1 AC 270, 292–295; Kazemi Estate v Islamic Republic of Iran  SCC 62.
65 Benkharbouche (n 4) para 34.
66 Benkharbouche (n 4) paras 30, 29(3) and 36. cf the ECtHR's assertion, without supporting evidence, that art 11 reflects customary law: Sabeh El Leil (n 60) para 58; Oleynikov v Russia (n 60) para 66.
67 J Foakes and R O'Keefe, ‘Article 11’ in R O'Keefe and C Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property: A Commentary 191, 201–2.
68 H Fox and P Webb, The Law of State Immunity (OUP 2013) 450.
69 Benkharbouche (n 4) para 36. See Foakes and O'Keefe (n 67) 201–2, who suggest that the drafters' intention was to ‘limit this residual category of employees [art 11(2)(b)(iv)] to miscellaneous persons of diplomatic status not already mentioned in Article 11(2)(b)’.
70 See Garnett (n 35).
71 Benkharbouche (n 4) para 42.
75 Benkharbouche (n 4) para 47, referring to Garnett (2005) (n 74) 707.
76 See eg practice discussed in Benkharbouche (n 4) paras 43–44, Foreign States Immunities Act 87 of 1981, section 5 (South Africa) and State Immunity Ordinance 1981, sections 6 and 17(1)(a) (Pakistan).
77 The Court also did not outline the criteria for identifying customary international law.
78 The ‘tenable view’ approach has been adopted by some UK judges when assessing whether a decision-maker's reliance on an unincorporated treaty provision has given rise to a legitimate expectation that the decision-maker act in accordance with the correct interpretation of that provision. See R (Corner House Research) v Director of the Serious Fraud Office  1 AC 756, 852 (Lord Brown), referring to the argument made by Sales, P and Clement, J, ‘International Law in Domestic Courts: The Developing Framework’ (2008) 124 LQR 388, 405–6Google Scholar.
79 Jones v United Kingdom (n 2) para 214.
80 However, see Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (2006) 42 EHRR 1, paras 150–156 (and more recently, Al-Saadoon v United Kingdom (2010) 51 EHRR 9, paras 126–128), where the ECtHR effectively suggests that the lex posterior rule does not apply to obligations under the ECHR, and States’ EU obligations must be carried out in a way that respects the ECHR.
81 Benkharbouche (n 4) para 56. See French Consular Employee Claim 86 ILR 583 (Austrian Supreme Court) and De Queiroz v State of Portugal 115 ILR 430 (Labour Court of Brussels).
82 Benkharbouche (n 4) para 56.
83 Benkharbouche (n 4) para 59, referring to UNYBILC (1999) vol II .
84 Benkharbouche (n 4) para 63, rejecting several objectives, including protection of the sovereign functions of an embassy, ensuring a sufficient jurisdiction link between the claim/employee and the UK (art 4(1) ensures a sufficient link), avoiding opportunistic changes of nationality or habitual residence, and preventing the prioritization of the employment law of the forum State over that of the foreign State.
85 Benkharbouche (n 4) para 64. See H Fox and P Webb, The Law of State Immunity (OUP 2013) 454 and Fox, H, ‘Employment Contracts as an Exception to State Immunity: Is All Public Service Immune?’ (1995) 66 BYBIL 97Google Scholar, 172.
86 Benkharbouche (n 4) para 68.
88 Art 52(3) of the EU Charter stipulates that the Charter rights have the same meaning and scope of ECHR as the equivalent ECHR rights, but ‘this provision shall not prevent Union law providing more extensive protection’. R Garnett (2015) (n 35) has explained that ‘an argument could be made that to give full effect and ‘‘extensive protection’’ to EU rules, international law principles that obstruct their operation, such as State immunity, must give way in all circumstances. While such a result creates a difference in scope between the rights under the ECHR and the Charter, such discrepancy could be justified by the need to fully implement EU law, even where it conflicts with international law.’ Although depending on the extent of the protection provided by EU law, this may result in making ‘immunity rules redundant’.
90 It is worth underscoring that the parties in Benkharbouche are private parties not because Libya and Sudan are not EU Member States, but because they are engaged in a private activity (‘acta jure gestionis’).
91 The immunity is from the State's adjudicative jurisdiction and not immunity from application of the law or immunity from legal liability. See in relation to diplomatic immunity Dickinson v Del Solar v Mobile and General Insurance Company, Limited (Third Parties)  1 KB 376, 380 (Lord Hewart CJ) (‘Diplomatic agents are not, in virtue of their privileges as such, immune from legal liability for any wrongful acts. The accurate statement is that they are not liable to be sued in the English Courts unless they submit to the jurisdiction. Diplomatic privilege does not import immunity from legal liability, but only exemption from local jurisdiction.’).
92 Benkharbouche (n 4) para 80.
93  AC 271.
94 This includes defence to Parliament on constitutional grounds (the proper allocation of responsibility between branches of government) and on institutional grounds (practical limits on the court's adjudicative capacity and/or that another branch of government might have superior institutional competence).
95  AC 271, 316, para 74.
96 Benkharbouche (n 4) para 85.
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