EU: European Court of Justice cases
01 November 1995
Recent European Court of Justice cases
R v Home Secretary ex parte Gallagher, ECJ, see Northern Ireland in this issue.
Two recent cases have shown the limits of the European Parliament's ability to influence Council decisions. In the first case, Parliament was refused a declaration that a regulation providing for technical assistance to the independent states of the former Soviet Union and Mongolia was void. Parliament argued that the consultation was a sham. It rejected the proposal after long consideration and debate, but the Council adopted it anyway five days later, with four substantial amendments on which Parliament had not been consulted. The European Court of Justice held that the amendments did not affect the essentials of the programme, and the fact that the Council continued work on the proposal while awaiting Parliament's opinion did not amount to a failure to consult. On the other hand, a Directive approved by Parliament and then substantially changed by the Council with no reconsultation was annulled. The Court held that the Council had infringed essential procedural requirements in changing provisions on road tax, tolls and charges. Parliament v Council of the European Union, C-417/93, 10.5.95, CJ Proceedings 18/95; Parliament v Council of the European Union, C-21/94, 5.7.95 (CJ Proceedings 20/95).
Recent ECHR cases
Cases referred to court:
Chahal v UK: A, an Indian citizen living in the UK over 20 years, with two British-born children, was involved in the movement for a Sikh homeland. He was charged with criminal offences but acquitted. A decision was taken in August 1990 to deport him on national security grounds, and he has been in custody ever since. He applied for asylum, which was refused in 1991 with no right of appeal. He had no appeal against the deportation decision, but had the right to appear before an advisory panel, with no legal representation, no right to know the evidence relied on by the Home Secretary, and no right to know the panel's recommendation. The Home Secretary issued a deportation order in July 1991. Judicial review was refused. He claims violations of Article 3 (exposure to torture, inhuman or degrading treatment); Article 8 (respect for family life); Article 5 (liberty and security of person) and Article 13 (effective remedy). In June 1995 the Commission expressed the opinion that all articles were violated. (Press release 407, 31.8.95)
LG v Austria: refusal of emergency benefit to non-Austrian citizen; the applicant claimed breaches of Article 6 (access to a court); Protocol 1 Article 1 (peaceful enjoyment of possessions) in conjunction with Article 14 (non-
discrimination). The Commission agreed that Protocol 1 and Article 14 had been violated. (Press release 437, 15.9.95)
Ahmed v Austria: refugee convicted of attempted robbery had asylum withdrawn and proceedings for expulsion to Somalia were underway. The Commission held that expulsion would breach Article 3 (exposure to torture, inhuman or degrading treatment) (Press release 467, 26.9.95)
Ahmut v Netherlands: refusal to allow Moroccan child to enter the Netherlands to live with his Dutch father, three years after his mother died in Morocco and six years after the marriage was dissolved. The Commission held that there was a violation of Article 8 (family life) (Press release 467, 26.9.95)
Judgments:
Vogt v Germany: a teacher was dismissed in 1987 after disciplinary proceedings begun in 1982 for "failure to comply with the duty of political loyalty", attaching to civil servants, including teachers, because of public political activities for the DKP (German Communist Party) since 1980. The Court held that the dismissal violated Articles 10 (freedom of expression) and 11 (freedom of association). (Press release 448, 26.9.95)