The Prohibition of Discrimination and Private International Law (2024)

I. Introduction

9.01 The Nuyts Report on Residual Jurisdiction observed that ‘The impact of the principle of equality and non-discrimination in the area of private international law has been the subject to much debate recently, but no clear answers emerge yet’.1 In this chapter, we will attempt to provide some answers.

9.02 The right not to be discriminated against is a human rights concern that has the potential to impact a number of issues in private international law. In this chapter, we will examine the prohibition of discrimination itself and go on to examine its impact on jurisdiction and recognition and enforcement of foreign judgments in private international law. The rules on the applicable law have also been impacted by the prohibition of discrimination. Examples of this phenomenon are given in this chapter.

9.03 One area where discrimination concerns have arisen is that of family law. There is potential for private international law rules in relation to international marriages and the recognition of a foreign status to be impacted by the prohibition of discrimination on the ground of sex. The recognition of polygamous marriages and extra-judicial divorces also raises issues in relation to the prohibition of discrimination on the ground of religion. However, these rules have also been impacted by other rights, particularly by the right to respect for private life and family life. These family law issues will be discussed in detail in subsequent chapters,2where the roles played by a number of human rights, including the prohibition of discrimination, can be considered together.

II. The Prohibition of Discrimination

9.04 The prohibition of discrimination seeks to give effect to the idea of equality. The terms non-discrimination and equality are often used interchangeably, reflecting opposite approaches to the same concern: equality is often seen as a positive statement that equals be treated equally, whilst the prohibition of discrimination is its negative formulation, precluding differential treatment on unreasonable grounds. As a basic idea, equality, and its counterpart non-discrimination, require that unless there is an adequate justification, like cases must not be treated differently, and different cases must not be treated in same way. Where there is a ‘rational’ justification for differential treatment, this will be acceptable. Protection of equality and non-discrimination entails positive obligations also. For example, it is generally recognised that positive action may need to be taken to break down historic or structural disadvantage that is not the direct consequence of specific measures.3

9.05 The ECHR includes two distinct protections from discrimination: Article 14 and Article 1 Protocol 12. The latter is a free-standing right not to be discriminated against, whilst the former provides for non-discrimination in the enjoyment of the rights in the ECHR.4 Whilst the obligations in Article 14 ECHR bind every ECHR Contracting State, ratification of Protocol 12 is rather limited. Eighteen Member States of the Council of Europe have ratified or acceded to the Protocol, with only eight of these being EU Member States.5

9.06 The Charter of Fundamental Rights reflects the strong commitment to equality within the EU more generally.6 Although historically EU law was only concerned with discrimination on the grounds of gender and nationality for market and economic reasons, since 1999 the EU’s competence in the equality field was widened by the inclusion of Article 13 EC (Article 19 TFEU) which provides for appropriate EU action to be taken to combat discrimination on a wide range of bases.7 This has led to a move towards a more comprehensive package of protection of equality in EU law that ‘stretch[es] well beyond the minimum intervention required by a pure market integration rationale’.8 Non-discrimination on grounds of nationality remains an important principle of EU law essential to both European market and social integration, and Article 18 TFEU prohibits any such discrimination. Moreover, the ECJ has recognised that the prohibition of discrimination is ‘merely a specific enunciation of the general principle of equality which is one of the fundamental principles of Community law’.9

9.07 It is perhaps not surprising then that there is an entire chapter of the CFREU concerned with ensuring equality: Title III. This chapter includes a basic right to equality before the law (Article 20), as well as rights to non-discrimination generally (Article 21(1)) and to non-discrimination on grounds of nationality (Article 21(2)) and gender (Article 22). There are other protections for specific vulnerable groups (children, the elderly, and those with disabilities)10 as well as a provision calling for respect for cultural, religious, and linguistic diversity.11

9.08 Although we are primarily concerned in this chapter with the protections afforded to the right not to be discriminated against in the ECHR and the Charter of Fundamental Rights, it is worth noting that equality is a key concern in both the domestic constitutional context12 and international human rights law more generally. All the UN human rights treaties have non-discrimination provisions. Article 2 UDHR provides ‘[e]veryone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.13 The ICCPR and ICESCR contain similar provisions,14 whilst Article 26 ICCPR sets out a free-standing right not to be discriminated against.15 Specific treaties have been adopted to deal with discrimination on particular grounds such as race (Convention on the Elimination of Racial Discrimination), gender (CEDAW), and disability (Convention on the Rights of Persons with Disabilities), whilst others ‘at least partly’ pursue the objective of equality and non-discrimination (such as the CRC and the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families).

1. Article 14 ECHR

9.09 Article 14 ECHR provides:

This is not a free-standing right to be free from discrimination. It is a ‘parasitic’ provision.16 That is, it only provides protection from discrimination in the enjoyment of the rights afforded protection by the ECHR. Not every difference in treatment will be discrimination for the purposes of the ECHR. Article 14 ECHR will be breached only where there is differential treatment of individuals in ‘relevantly similar’ or ‘analogous’ situations on the basis of any of the grounds listed which impacts the enjoyment of rights in the ECHR, and there is no objective and reasonable justification for that difference in treatment.17

9.10 Given the subsidiary nature of the protections provided by Article 14 ECHR, the ECtHR has often declined to examine a complaint of a violation of Article 14 ECHR when it has already found a violation of the right impacted by the differential treatment. The ECtHR explained its approach in Airey v Ireland:

(a) Discrimination in the enjoyment of Convention rights

9.11 A threshold test for the applicability of Article 14 ECHR is whether the difference in treatment falls within the ‘ambit’ of a Convention right. However, as the ECtHR said in Airey, there does not need to be a violation of the Convention right.19 A measure that complies with the substantive right in the ECHR, but is of a discriminatory nature, will violate Article 14 ECHR when read together with the substantive right. The ECtHR has extended the scope of

So, in situations where a Contracting State goes beyond its obligations in relation to a particular right in the ECHR, it must do so in a manner that is not discriminatory. For example, there is no right to an appeal process under Article 6 ECHR. However, where a Contracting State does provide for a system of appeals, then this is a matter that will fall within the ‘ambit’ of Article 6 ECHR for the purposes of Article 14 ECHR. As such, if the right to appeal was only given to a certain group of persons, and not another, without legitimate reason, this will be a violation of Article 14 taken together with Article 6 ECHR. Similarly, although there is no right to adopt under Article 8 ECHR (which protects the right to private life and family life), where a Contracting State does provide for adoption this has been held to fall within the ‘ambit’ of Article 8 ECHR.21

9.12 Although the precise ‘ambit’ of a right protected by the ECHR can be difficult to define,22 this threshold concern is not one that is likely to prove difficult to fulfil in the context of private international law issues. It has been seen that jurisdiction in private international law can raise concerns regarding the right to a fair trial, both in relation to the right of access to a court and the right to fair proceedings within a reasonable time.23 For example, where there is a denial of jurisdiction it has been seen that Article 6 ECHR, and specifically the right of access to a court, is engaged.24 In such a situation Article 14 ECHR will also be applicable. Even if the denial of access to a court can be justified for the purposes of determining whether there has been a violation of Article 6 ECHR,25 this will not affect the applicability of Article 14 ECHR.

9.13 Similarly, we have seen that Article 6 ECHR is engaged when private international law rules regarding recognition and enforcement of a foreign judgment are applied.26 Although there is only slender authority that mere refusal to recognise or enforce a foreign judgment will constitute a violation of Article 6 ECHR,27 there is no question that non-recognition or enforcement will fall within the ‘ambit’ of the right to a fair trial given the ECtHR’s acceptance that excessive delays in recognition and enforcement of a foreign judgment will violate Article 6 ECHR.28 It has been argued that if there is a right to recognition and enforcement of a foreign judgment, this is not absolute and non-recognition may not violate Article 6 ECHR.29 Yet, even where the non-recognition can be justified for the purposes of Article 6, this does not affect the applicability of Article 14 ECHR. Other substantive rights may be engaged depending on the subject of the proceedings. For example, the recognition of a foreign adoption will fall within the ‘ambit’ of Article 8 ECHR.30

9.14 As regards the applicable law, it may be possible to show that the facts of the case fall within the ambit of a Convention right, such as the right to respect for private and family life under Article 8 ECHR. For example, in Green and Farhat v Malta it was accepted that a complaint relating to non-recognition of a foreign marriage fell within the ambit of Article 8 ECHR.31 In Ammdjadi v Germany a complaint relating to the applicable law with regard to ancillary relief was assumed to be ‘within the scope’ of Article 8 ECHR and therefore within the ambit of Article 8 for the purposes of an Article 14 ECHR analysis.32 Similarly in Losonci Rose and Rose v Switzerland it was established that choice of law rules concerning spouses’ surnames came within the ambit of Article 8 ECHR.33

(b) Differential treatment of persons in analogous situations

9.15 There is the potential for a violation of Article 14 ECHR when there is differential treatment in the enjoyment of a Convention right. For example, a complaint may arise that the applicant was treated differently from others who were treated better. This may be because of interference in the enjoyment of Convention rights that others are not subjected to or because of a denial of an opportunity to enjoy a right under the ECHR, such as access to a court, which others can enjoy. So, legislation or non-statutory measures34 must not be drafted or applied in a manner35 that intends to treat a person less favourably on the basis of one of the prohibited grounds listed in Article 14 ECHR. This would constitute ‘direct discrimination’.

9.16 A discriminatory difference of treatment may also arise when a rule is outwardly ‘neutral’ (because it is not aimed at creating a difference in treatment) but it has a disproportionate impact on a particular group in the enjoyment of their Convention rights. This is known as ‘indirect discrimination’. In DH and Others v Czech Republic36 the ECtHR explicitly accepted that this form of discrimination would breach Article 14 ECHR. It stated,

Applicants alleging such indirect discrimination may rely upon statistics which appear to be ‘reliable and significant’ to show a prima facie case of differential treatment, and it is for the respondent Contracting State to show that the difference in treatment is not discriminatory.38

9.17 Not every difference in treatment will amount to an interference with the right protected by Article 14 ECHR. Rather, it must be established that the other persons are in an ‘analogous’ or ‘relevantly similar’ situation.39 In Johnston v Ireland the ECtHR was not convinced that couples resident and domiciled in Ireland were in an analogous situation to those couples resident in Ireland but domiciled abroad.40 Therefore, the ECtHR held that there was no discrimination in circ*mstances where Irish private international law would recognise a foreign divorce obtained by those domiciled abroad but resident in Ireland, but the applicant (who was resident and domiciled in Ireland) could not obtain a divorce in Ireland and could not have a foreign divorce recognised.41 It appears that the private international law connecting factor of domicile precluded comparison. However, the ECtHR has not taken a consistent approach to private international law connecting factors and comparability. In a number of other cases the ECtHR has assumed that a comparison can be made and then sought to address whether this can be objectively justified.42

9.18 It is not always apparent whether persons are in analogous situations. The concept of ‘analogous situation’ has been described as ‘a notoriously slippery one: there is no limit to either the analogies or disanalogies which might be drawn between two groups or individuals’.43 In fact, the ECtHR has, on occasion, subsumed this requirement into the assessment of whether there is a justification for the difference in treatment.44 The English courts have suggested that this is not always a threshold question and that ‘where the position [as to whether persons are in an analogous situation] is not so clear … the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.’45 For the House of Lords and the Supreme Court, the selection of a comparator group is only part of a ‘framework’ of useful analysis and is not a barrier to considering whether certain treatment amounted to discrimination.46

9.19 Beyond the negative obligations not to engage in direct and indirect discrimination, there are also positive obligations to ensure that discrimination does not take place. For example, Contracting States are obliged to ensure that indirect discrimination does not take place, and this may require individuals who are not in relevantly similar situations to be treated differently. In Thlimmenos v Greece47 a failure to take into account the applicant’s religious beliefs and therefore distinguish his conviction for insubordination arising from a refusal to wear a military uniform from other criminal convictions was held to be a violation of Article 14 taken together with Article 9 ECHR. The ECtHR stated, ‘The right not to be discriminated against in the enjoyment of rights under the Convention is also violated when States without an objective and justifiable reason fail to treat differently persons whose situations are significantly different.’48 In such situations, Contracting States enjoy a wide margin of appreciation regarding the extent of differential treatment that should be afforded.

(c) A prohibited ground

9.20 Article 14 ECHR only prohibits unjustified differential treatment that is based ‘on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.49 Although Article 14 ECHR does not refer to nationality as a prohibited ground for differentiation, the reference to national or social origin has been held to include discrimination on such a basis.50 In practice, establishing that a difference of treatment is based on a prohibited ground is usually unproblematic51 since the ECHR prohibits discrimination ‘on any ground’ and the list in Article 14 is ‘illustrative and not exhaustive’.52 The reference to ‘other status’ reinforces that the grounds upon which discrimination is prohibited are very wide.53 It is for the ECtHR to make its own assessment whether or not the reason for differential treatment is based on a prohibited ground.54

9.21 There are limits to what is covered by ‘other status’, though. The ECtHR has stated that Article 14 ECHR is only concerned with differences of treatment that have as their basis a ‘personal characteristic (“status”) by which persons or groups of persons are distinguishable from each other’.55 On this basis, it has accepted that sexual orientation,56 illegitimacy,57 age,58 and marital status59 (including the nature of the ceremony, be it civil or religious)60 fall under ‘other status’. In Magee v UK the ECtHR found that a difference in treatment between those arrested in England and Wales and those arrested in Northern Ireland was ‘not to be explained in terms of personal characteristics … but on the geographical location where the individual is arrested and detained’.61 Therefore, a difference in treatment on this basis did not amount to discrimination for the purposes of Article 14 ECHR. In a separate line of case law, the ECtHR has suggested that there is no requirement for a ‘personal characteristic’ to be the basis of differential treatment,62 and it has recognised that both residence and habitual residence,63 as well as domicile,64 fall within ‘other status’. In Carson v UK the ECtHR appeared to harmonise these two differing lines of case law by recognising both approaches were valid.65 However, since then the ECtHR’s case law has often reverted back to the ‘personal characteristic’ requirement.66

9.22 Despite the difficulties in establishing the underlying rationale for what falls within the category of ‘other status’, it is clear that it encompasses such things as marital status and immigration status,67 as well as being a ‘foreign legal entity’.68 It also encompasses connecting factors in private international law, other than nationality, such as domicile, and habitual residence or residence. It has been suggested that different treatment on the ground of residence abroad (and, one might argue, domicile abroad) might amount to differential treatment on the ground of nationality because the great many persons resident abroad are likely to be foreign nationals.69 This would be indirect discrimination on the ground of nationality. As will be seen, the ground of discrimination is highly significant when it comes to justifying differential treatment.

(d) Justification

9.23 The ECtHR has reiterated that a difference of treatment only constitutes a violation of Article 14 ECHR if it ‘has no objective and reasonable justification’, that is if it does not pursue a ‘legitimate aim’ or there is no ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.70 Therefore, ‘Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circ*mstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention.’71 Such distinctions are not considered discrimination for the purposes of the ECHR.

9.24 It has been noted that the ECtHR tends to accept the policy aim pursued by a State as ‘legitimate’.72 As such it appears that ECHR Contracting States have been accorded a wide margin of appreciation in this respect. Where the ECtHR’s scrutiny tends to be more focused is on the ‘proportionality’ of the means employed to the aim being pursued. A Contracting State must show the link between the legitimate aim pursued and the differential treatment challenged by the applicant.73 Although the ECtHR has confirmed that Contracting States enjoy a certain margin of appreciation in assessing what differential treatment is proportionate to the aim pursued,74 it has also held that the scope of the margin will ‘vary according to the circ*mstances, the subject matter and its background’, as well as whether there is a common approach amongst ECHR Contracting States.75

9.25 The margin of appreciation afforded to Contracting States will be very narrow where the differential treatment is on ‘suspect’ or particularly sensitive grounds. The ECtHR will apply a strict level of scrutiny to such treatment.76 Therefore, only ‘very weighty reasons’ will justify differences in treatment based on such grounds. Specifically, the ECtHR has identified differential treatment on the basis of sex,77 nationality,78 race,79 religion,80 birth status,81 disability,82 or sexual orientation83 as requiring ‘particularly serious reasons’. In contrast, the House of Lords has suggested that differential treatment on the basis of residence is not regarded as being a particularly sensitive ground, for two reasons: first, residence is a matter of choice and therefore may change; second, there is nothing ‘intrinsically demeaning about an individual’s place of residence’.84 This does not mean that all differences in treatment on this ground are acceptable; there may still be discrimination contrary to Article 14 ECHR if the difference in treatment is devoid of any rational basis.85 Similarly, it is unlikely that a difference in treatment will be acceptable where it has particularly severe consequences for the applicant.86

9.26 It is worth considering what constitutes ‘particularly serious reasons’ in the private international law context. In Ammdjadi v Germany87 the applicant wife alleged that she had been discriminated against on grounds of nationality, when her claim to a share in her husband’s pension was referred to her national (Iranian) law, thereby debarring the entitlements of German law, in circ*mstances where she had been resident in Germany for approximately twenty years prior to the application. The German decision was based on a 1929 bilateral agreement between the German Reich and the Persian Empire, which had been regarded as being applicable between both States by a 1954 German–Iranian Protocol.88 The ECtHR held the application to be manifestly ill-founded. It referred to the fact that

No mention was made of the strict standard of scrutiny afforded to differential treatment on the basis of nationality. There appears to be some acceptance on the part of the ECtHR that the operation and purpose of private international law rules must be taken into consideration even in the context of discrimination on grounds of nationality. Therefore, it is suggested that caution needs to be exercised when extrapolating from ECtHR pronouncements on justification and proportionality in other contexts and predicting the outcome of discrimination complaints in relation to private international law rules (and particularly those from the EU) on that basis.

9.27 Granos Organicos Nacionales SA v Germany90 concerned a complaint from a company registered under Peruvian law and based in Lima regarding the refusal of the German courts to afford it legal aid to pursue a claim of breach of a contract. The contract had been concluded with German companies and provided that all legal disputes would be brought before the courts in Hamburg. The applicant company claimed that the refusal to provide legal aid was discriminatory and therefore contrary to Article 14 taken together with Article 6(1) ECHR, specifically the right of access to a court, because there was an unjustified difference of treatment between domestic legal entities (as well as those from the EU, a State party to the agreement on the European Economic Area, or a State party to the Hague Convention on Civil Procedure) and foreign legal entities when considering whether to grant legal aid. The ECtHR held that the difference in treatment did not amount to discrimination contrary to Article 14 ECHR. The German government had submitted ‘relevant reasons for the different treatment … between domestic and foreign legal entities, in particular the principle of reciprocity’.91 The ECtHR accepted the German government’s argument that reciprocity was a relevant consideration because ‘if equal treatment was codified under constitutional law, there would be no incentive for foreign States to provide German legal persons with the same legal standards’.92 Given that the ECtHR had not been convinced that a foreign legal person was eligible for legal aid before the Peruvian courts the difference in treatment was objectively justified.93

9.28 As was suggested in Ammdjadi, another factor that ought to be taken into account regarding the operation of private international law rules is where differential treatment is based on a bilateral treaty arrangement with another State. Even outside of the private international law context, this background appears to affect the acceptability of such treatment. In Carson v UK the ECtHR emphasised the legitimacy of bilateral treaties even where they led to the preferential treatment in a Contracting State of persons resident in certain third countries, and less favourable treatment of persons resident in other non-ECHR Contracting States. This was in relation to bilateral agreements regarding pension payments for British nationals living abroad. The ECtHR accepted that any obligation arising from the ECHR to extend the same advantages as those provided for in the bilateral treaty to British nationals living in other countries ‘would effectively undermine the right of States to enter into reciprocal agreements and their interest in so doing’.94

9.29 A similar approach appears to have been taken where there is a difference of treatment between EU citizens and third country nationals where this is based on fulfilling the purposes of the EU legal order. For example, in Moustaquim v Belgium95 the applicant, a Moroccan national who had the right of residence in Belgium, challenged the application of Belgium rules under which he was deported following convictions for a number of criminal offences. He claimed that this was a violation of Article 14 taken together with Article 8 ECHR as those who possessed Belgian nationality and those who were citizens of the EU (EC as it was then) could not be deported if similarly convicted. The ECtHR dismissed both arguments. Of interest is the reasoning provided regarding the distinction between the applicant’s treatment and that of EU citizens. The ECtHR held, ‘As for the preferential treatment given to nationals of other member States of the Communities, there is objective and reasonable justification for it as Belgium belongs, together with those States, to a special legal order’.96 The ECtHR’s emphasis was on the special nature of the EU (then EC) legal order and this provided a justification for the different treatment.97 This was in the context of discrimination on grounds of ‘nationality’ where it has been seen the ECtHR requires particularly weighty reasons to justify differential treatment.98 Similarly, there was no concern expressed by the ECtHR in Granos Organicos that there was a difference in treatment between the Peruvian company and companies registered in EU Member States, who were treated in the same way as domestic legal entities.99

9.30 However, not every differentiation between EU citizens and third country nationals will be tolerated. In Ponomaryovi v Bulgaria, the ECtHR confirmed that ‘the preferential treatment of nationals of Member States of the European Union … may be said to be based on an objective and reasonable justification, because the Union forms a special legal order, which has, moreover, established its own citizenship’.100 However, the ECtHR went on to hold that this view could not be applied in all contexts without some ‘qualification’.101 The ECtHR held that there had been a violation of Article 14 taken together with Article 2 Protocol 1 ECHR where Russian parents were made to pay secondary school fees whilst the children of EU migrant workers were afforded free secondary school education. This was because education served broad societal functions.102 The ECtHR held that a narrow margin of appreciation should be afforded to the Bulgarian government when distinguishing, on the basis of nationality, between EU citizens and third country nationals.103 So, a difference in treatment between EU citizens and third country nationals is considered to have an ‘objective and reasonable justification’, but this may be outweighed by the nature of the right or benefit at stake and the consequences of the difference in treatment in a particular case.

2. Article 1 Protocol 12 ECHR

9.31 The second protection afforded to non-discrimination in the ECHR is set out in Article 1 Protocol 12 ECHR, which provides a free-standing right not to be discriminated against:

Whilst Article 14 ECHR requires that the differential treatment is within the ‘ambit’ of a Convention right, Article 1 Protocol 12 ECHR does not require this link. Rather, this provision affords protection against discrimination in the enjoyment of ‘any right set forth by law’, as well as protection from discrimination by public authorities.104 This means that any right granted by legislative measures, the common law, or international law should be enjoyed without discrimination.105 It therefore provides a more general protection of equality.

9.32 The term ‘discrimination’ in Article 1 Protocol 12 ECHR is to be interpreted in the same way as in Article 14 ECHR.106 Therefore the principles outlined above are applicable.

3. EU Fundamental Rights

9.33 Articles 20 and 21 CFREU appear to provide equivalent protections. Whilst Article 20 CFREU provides: ‘Everyone is equal before the law’, Article 21 CFREU provides:

Both seek to protect individuals from unjustified differences in treatment. The ECJ has said, ‘The principle of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.’107 If equality and non-discrimination are coterminous then it is not clear why the Charter includes both Articles 20 and 21. It has been argued that in practice a distinction has been developed by the ECJ: namely that ‘the emerging tendency of the Court is to cite Article 21 in cases relating to the protected personal characteristics listed in that provision, while Article 20 is more commonly cited in relation to other differences in treatment’.108 As such, Article 21(1) CFREU is seen as ‘a particular expression of the principle of equal treatment, which is a general principle of EU law enshrined in Article 20 of the Charter’.109

9.34 The Explanations to the Charter suggest that Article 20 CFREU corresponds to a general principle of law recognised in the constitutions of Member States and which has been recognised as a general principle of EU law.110 Article 21(1) CFREU is considered to draw on what is now Article 19 TFEU111 and Article 14 ECHR.112 Article 21(2) CFREU, which prohibits discrimination on grounds of nationality, is considered113 to correspond to Article 18(1) TFEU.114 The latter provision sets out a protection for the fundamental right115 not to be discriminated against on grounds of nationality. It has been seen116 that insofar as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by the Convention. However, Article 21 CFREU should not be considered to correspond directly with Article 14 ECHR.117 There are significant differences between the protections afforded by both these provisions. Most apparent is that the protection afforded by the CFREU is a free-standing equality protection whilst Article 14 ECHR is restricted to prohibiting unjustified differential enjoyment of Convention rights. So, although Article 21(1) CFREU is considered to be based on Article 14 ECHR, the strong Treaty protections in the field of equality cannot be ignored and are likely to influence the interpretation of this provision. Article 21(1) CFREU is linked to the wide range of secondary EU legislation that has been adopted regarding equality and non-discrimination on grounds of race, gender, sexual orientation, disability, religion and belief, and age.118 Similarly, Article 21(2) CFREU—the right not to be discriminated against on grounds of nationality—must be interpreted in light of the Treaty protection of this right under Article 18 TFEU and, as will be seen, does not appear to provide the same width of protection as Article 14 ECHR.119

9.35 The scope of protection afforded by Articles 20 and 21 CFREU should be noted. Beyond the more general limitation provided for in Article 51 CFREU,120 the Explanations to the Charter make it clear that Article 21(1) CFREU only addresses discrimination by the institutions and bodies of the EU when they are exercising powers under the Treaties, and by Member States when they are implementing EU law.121 The text of Article 21(2) CFREU provides that it only affords protection ‘within the scope of application’ of the Treaties and the Explanations to the Charter provide that it must be applied in compliance with Article 18 TFEU. There are, therefore, limits to the potential protection afforded by these provisions.

(a) Differential treatment

9.36 Both differences in treatment of comparable situations as well as a failure to treat unlike situations differently are captured under Articles 20 and 21 CFREU. As in Article 14 ECHR ‘direct’ and ‘indirect’ differences in treatment are included. As to whether there is a difference of treatment, the situations compared must be comparable. The ECJ has held that ‘[t]he elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in light of the subject-matter and purpose of the … act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account.’122

9.37 In the private international law context, the ECJ has found instances of discrimination on grounds of nationality on the basis of indirect discrimination. For example, in Mund & Fester v Hatrex International Transport,123 the ECJ was asked whether a German procedural rule was discriminatory, contrary to the then Article 7 EEC Treaty,124 now Article 18(1) TFEU. The German rule provided for the seizure of assets when it was feared that enforcement of the judgment would otherwise be made impossible or substantially more difficult.125 The fact that a judgment was to be enforced abroad was considered sufficient grounds for a seizure order.126 The facts of the case involved a German company suing a Dutch company and seeking a seizure order against its assets in Germany. Recognition and enforcement would take place under the Brussels system. This system and the national provisions to which it referred were linked to the EEC Treaty.127 The ECJ concluded that the German national provision fell within the ambit of the EEC Treaty. The ECJ held that this national provision entailed a ‘covert’, that is ‘indirect’,128 form of discrimination.129 There was no overt (direct) discrimination based on nationality, since it applied in all cases where a judgment was to be enforced abroad, even if the assets to be seized belonged to a German national.130 Nevertheless, this would be rare and the great majority of seizures would be against persons who were not German nationals. The result was discrimination based on nationality.131

9.38 Another example is Boussac Saint-Freres SA v Birgitte Gerstenmeier.132 This is of especial interest because the discrimination related to access to the courts, which is, of course, an issue raised by the rules of jurisdiction in private international law. The ECJ gave as an example of covert (indirect) discrimination a national law which subjected access to the courts to conditions relating to the currency in which debts were expressed.133 This might place creditors established in the other Member States in a less favourable position than creditors established on national territory and thus constituted a barrier to trade in the common market principally affecting the nationals of the other Member States. Likewise, whilst a national tax rule using the criterion of permanent residence was not directly discriminatory because it applied regardless of the nationality of the taxpayer, it was indirectly discriminatory because of the risk that it would work in particular against nationals of other Member States.134 It was often such persons who would in the course of the year leave the country or take up residence there.

9.39 As regards the duty to treat unlike situations differently, an example of how this might operate in the private international law context can be seen in the case of Carlos Garcia Avello v État Belge.135 This case concerned the right to a name. This is a matter on which there is much law in civil law jurisdictions, and, where there is a cross-border element, is regarded as coming within the ambit of private international law, but which has not raised similar concerns in common law jurisdictions.136 A Belgian administrative authority refused to grant an application for a change of surname made by a father, who was a Spanish national, on behalf of children resident in Belgium. The children had dual nationality in Belgium and Spain. The mother was a Belgian national. The mother and father resided in Belgium and the children were registered there with the father’s name, as laid down by Belgian law. The purpose of the change of name was to enable the children to bear the surname to which they were entitled according to the law and tradition of Spain. This would have reflected the mother’s name as well as that of the father. The ECJ held that what is now Article 18(1) TFEU137 precluded the Belgian administrative authority from refusing to grant the application. There was discrimination on the ground of nationality in that Belgian nationals who were also Spanish nationals were treated the same as purely Belgian nationals, even though the situations were different. The children had the right to be treated differently, unless the same treatment could be justified on objective grounds.138

(b) Prohibited grounds

9.40 Article 21(1) CFREU provides a list of grounds upon which discrimination is prohibited. These include those set out in Article 14 ECHR as well as some further additions: ethnic or social origin, genetic features, belief, disability, age, and sexual orientation. However, this is not an exhaustive list of prohibited grounds. Article 21(1) CFREU stipulates that ‘any discrimination based on any ground such as …’ is prohibited and therefore there is potential for this provision to capture discrimination on grounds other than those explicitly listed. Such grounds could include certain private international law connecting factors such as domicile, habitual residence, or residence. Yet, as noted above, it has been argued that the ECJ does not tend to read Article 21(1) CFREU expansively. Rather, claims of discrimination on grounds not listed in Article 21(1) CFREU are likely to be considered under the general equality provision of Article 20 CFREU.

9.41 Article 21(2) CFREU specifically prohibits discrimination on the ground of nationality. Given that differential treatment on the basis of domicile or residence could be considered to be indirect differential treatment on the basis of nationality because of the class of persons affected (that is mainly foreign nationals),139 this ground deserves some special consideration. Article 21(2) CFREU must be interpreted in light of Article 18 TFEU, which provides for an identical prohibition against discrimination on the ground of nationality. It is beyond doubt that these provisions provide protection against unjustified differential treatment between nationals of EU Member States. This protection plays a key role in enabling free movement and gives further substance to the concept of EU citizenship.

9.42 A question remains though as to whether the prohibition of discrimination on grounds of nationality extends to nationals of non-EU Member States. In Vatsouras v Arbeitsgemeinschaft Nürnberg, the ECJ held that Article 12 TEC (now Article 18 TFEU) ‘concerns situations coming within the scope of Community law in which a national of one Member State suffers discriminatory treatment in relation to nationals of another Member State solely on the basis of his nationality and is not intended to apply to cases of a possible difference in treatment between nationals of Member States and nationals of non-member countries.’140 It seems that the prohibition on discrimination on grounds of nationality is seen to enable free movement within Europe and not to afford protection to third country nationals. If this is correct, then it would appear that Article 21(2) CFREU only prohibits nationality discrimination between nationals of EU Member States and no more. Certainly, the ECJ refused to apply Article 21(2) CFREU when it was explicitly referred to in a preliminary reference regarding an Italian law that distinguished between EU citizens and third country nationals in the availability of housing benefit.141 This restrictive application of Article 21(2) CFREU (and Article 18 TFEU) has been challenged in recent years on the basis that EU law now regulates some aspects of the treatment of third country nationals.142 However, even if this interpretation withstands these criticisms, differential treatment of nationals of non-EU Member States may still be captured by Article 20/Article 21(1) CFREU.

(c) Justification

9.43 The general principle of equality that is reflected in Articles 20 and 21 CFREU suggests that not all differences in treatment will be problematic; only those that cannot be ‘objectively justified’ are prohibited.143 ‘A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to the legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by that treatment.’144

9.44 The approach taken by the ECJ to these criteria can be seen in the case of Société Arcelor.145 In that case the ECJ was asked to consider whether a difference in treatment between the application of a Community emissions allowance trading scheme to the steel sector and not the aluminium and plastics industry was contrary to the general principle of equal treatment. The ECJ held that ‘the Community legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations. … However, even where it has such a discretion, the Community legislature is obliged to base its choice on objective criteria appropriate to the aim pursued.’146 The ECJ held that in light of the objective data there was no breach of the principle of equal treatment. Therefore, like the ECtHR, the ECJ affords a discretion or margin of appreciation to decision-making authorities when considering whether differential treatment pursues a legitimate aim and is proportionate to that aim.

9.45 Unlike the ECtHR the ECJ has not identified any ‘suspect’ grounds of differentiation which require particularly weighty reasons in order to be justified. However, given that the level of protection afforded by the ECHR is to be the minimum standard of protection afforded by the Charter, it is assumed that the requirement of particularly weighty reasons will apply for those ‘suspect’ grounds of differentiation identified by the ECtHR. This is supported by Advocate General Kokott’s suggestion in Test-Achats that, ‘A justification for direct discrimination on grounds of sex … is … conceivable only in limited circ*mstances and has to be carefully reasoned’.147 It is possible that the approach to justifications under Article 21 CFREU will be more stringent than that taken by the ECtHR in some circ*mstances. Given the close links between Article 21(1) CFREU and the various pieces of EU secondary legislation regarding status discrimination,148 it has been suggested that the approach taken in those instruments to whether differential treatment can be justified should be replicated when considering status discrimination under the Charter.149 Essentially, this would mean that direct discrimination on grounds of race, gender, sexual orientation, disability, and religion and belief can only be justified on a very limited, often legislatively defined, basis, whilst indirect discrimination can be justified using the wider and less stringent objective proportionality test articulated above.150

9.46 However, even where there is direct discrimination on one of these status discrimination grounds it is submitted that there will not automatically be a breach of the Charter. Consideration must be given also to the limitations clause under Article 52(1) CFREU.151 This provides,

In Léger the ECJ held that a permanent ban on a hom*osexual man donating blood, on account of the fact that he had had hom*osexual relations, meant that the man was treated less favourably than a male heterosexual person. On this basis, the ECJ held that this ‘may discriminate against hom*osexuals on grounds of sexual orientation within the meaning of the Charter’.152 The ECJ then proceeded to consider whether this was justified on the basis of Article 52(1) CFREU: namely whether the limitation in enjoyment of the right not to be discriminated against was prescribed by law, whether the essential aspects of the right were respected, whether an objective of general interest was pursued, and, finally, whether the measure ‘exceed[ed] the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued’.153 In essence, the main concern was whether the direct discrimination could be objectively justified and whether it was proportionate to the aim pursued.154

9.47 As regards justifying differential treatment on the ground of nationality, we can look to the ECJ’s case law on what is now Article 18 TFEU to establish the approach to be taken. In general, the importance of freedom of movement within the EU means that any differential treatment on the basis of (EU Member State) nationality will be treated with some scepticism. Discrimination on grounds of nationality will not be found where the difference in treatment can be justified by objective circ*mstances155 independent of the nationality of the persons concerned156 and the differential treatment is proportionate to the objective being legitimately pursued.157 The more explicit the distinction between nationalities (that is, the greater the discriminatory effect), the harder it will be to justify. So direct discrimination will be harder to justify than indirect discrimination.

9.48 In Mund & Fester, the automatic application of the German procedural rule that provided for seizure of assets—when it was feared that enforcement of the judgment would otherwise be made impossible or substantially more difficult—to situations where the judgment would be enforced abroad was held to be not justified.158 The presumption of substantial difficulty where the judgment is to be enforced abroad was justified where enforcement was to take place in a non-Member State. However, where enforcement was to take place in a Member State, the Brussels system for recognition and enforcement within the EU meant that there was no objective justification for the presumption.159 The German rule considered the risks and difficulties of enforcement to be undeniable solely because enforcement would take place in a Member State other than Germany.160 This was not tenable because Member States ‘may be regarded as constituting a single entity’.161 The upshot was that the national provision was incompatible with what is now Article 18(1) TFEU.

9.49 In Carlos Garcia Avello v État Belge the ECJ held that there was no objective justification for treating children with dual nationality in the same way as those with Belgian nationality in terms of surnames. The Belgian government’s argument that the immutability of surnames served to prevent the risk of confusion as to identity or parentage of persons was dismissed. The ECJ held that a system allowing elements of the surnames of two parents to be used would contribute to reinforcing recognition of the connection with both parents.162 Furthermore, given the scale of migration within the EU and the differing practices regarding surnames, in any given Member State parentage could not necessarily be assessed solely on the basis of criteria applicable to that State’s nationals.163 The Belgian government also argued that the practice of treating all children with Belgian nationality (even if they had dual nationality) in the same way served the purpose of integration into Belgian society. The ECJ held that this was ‘neither necessary nor even appropriate’.164 The disproportionate nature of the Belgian refusal to allow a change of name was shown by the fact that Belgian law allowed derogations from the Belgian system of naming children in situations similar to the present one.165

III. Jurisdiction

1. Is there Discrimination under the EU Rules?

9.50 It is common for courts166 and commentators167 to refer to ‘discrimination’ in what appears to be the sense of a difference in treatment. As will be seen, a number of provisions under the Recast Brussels I Regulation and Brussels II bis have been described as preventing discrimination or giving rise to discrimination. In the following sections (a) and (b) these provisions will be examined. Discrimination in the strict sense means contrary to a human rights provision, whether under the ECHR, the Charter, or Article 18 TFEU. There has been a lack of systematic analysis of these jurisdictional provisions by commentators on private international law to see whether they are in fact incompatible with human rights law. The question of whether there is discrimination in this strict sense is considered in section (c). This will involve considering whether there is unjustifiable differential treatment under human rights law, not merely some difference in treatment. Do other persons in an analogous or relatively similar situation enjoy preferential treatment? If there is differential treatment, is there any objective justification for such treatment? It follows that in sections (a) and (b), when the term ‘discrimination’ is being used, this is merely repeating the language of commentators on private international law. But, in human rights terms, what we are really talking about in these two sections is the potential for discrimination contrary to human rights law.

(a) Discrimination under the Recast Brussels I Regulation

(i) The concern to prevent discrimination

9.51 The impact of a concern in relation to non-discrimination can be seen in the introduction into the Brussels regime of provisions that were designed to prevent this: the first is Article 4(2) Brussels I Recast;168 the second is Article 6(2) Brussels I Recast.

(a) Article 4(2) Brussels I Recast

9.52 Article 4(2) Recast Brussels I Regulation provides that ‘Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that Member State.’ This provision is concerned particularly with the situation where the defendant is domiciled in a Member State. It will be recalled that, in this situation, such persons ‘shall, whatever their nationality, be sued in the courts of that Member State’.169 What is now Article 4(2) Brussels I Recast is said to embody the principle of equality of treatment where a foreigner is domiciled in the State of the forum. Such a foreigner, whether plaintiff or defendant, is governed in that State by the same rules of jurisdiction as a national of that State.170

(b) Article 6(2) Brussels I Recast

9.53 Article 6(2) Brussels I Recast provides that as against a defendant not domiciled in a Member State,

This provision should be read alongside the other more general provision dealing with defendants domiciled in a non-Member State, Article 6(1) Brussels I Recast, which provides: ‘If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Articles 18(1), Article 21(2) and Articles 24 and 25,172 be determined by the law of that Member State.’

9.54 Article 4(2) Brussels Convention, the predecessor to Article 6(2) Brussels I Recast, has been described as a positive statement of the principle of equality.173 It was introduced to prevent discrimination as between plaintiffs based on nationality.174 At first sight it might not appear to be necessary, and it was not necessary as regards most Member States. According to Article 4(1) Brussels Convention (now Article 6(1) Brussels I Recast), each Member State is to apply its traditional national rules, including any national rules of exorbitant jurisdiction, where a defendant is domiciled abroad. Thus an Italian plaintiff can sue a Japanese defendant in Germany basing jurisdiction on the exorbitant basis of jurisdiction founded on the defendant having assets in Germany,175 or sue the Japanese defendant in England basing jurisdiction on service of the claim form on the defendant whilst temporarily present in England.176 However, under French law, in its bilateral treaty with Denmark there was a specific provision saying that a Danish national could not sue in France on the basis of Article 14 of the French Civil Code (jurisdiction based on the plaintiff’s French nationality177). This would have created uncertainty as to the position under the Brussels Convention where jurisdiction was based on the nationality of the plaintiff. Article 4(2) of the Brussels Convention (now Article 6(2) Brussels I Recast) was designed to end that uncertainty. In terms of preventing discrimination, a Danish plaintiff domiciled in France cannot be denied, on the ground that he is a national of Denmark, the opportunity to use Article 14 of the French Civil Code to obtain jurisdiction in France.

(ii) Discrimination where a defendant is domiciled outside the EU

9.55 Where a defendant is domiciled outside the EU concerns have been raised in relation to discrimination on the ground of domicile. The two key provisions in the Brussels I Recast dealing with this situation are Articles 6(1) and (2). There was a widespread view in the National Reports on the application of the Brussels I Regulation in individual Member States that there was discrimination under what is now Article 6(2) Brussels I Recast or more generally in relation to Article 6. The way in which the operation of these provisions can be said to lead to a difference in treatment and the nature of this difference will now be examined.

(a) Discrimination under Article 6(1) Brussels I Recast

9.56 Article 6(1) Brussels I Recast can be said to differentiate between defendants who are domiciled in non-EU Member States and defendants who are domiciled in Member States. The former are subject to traditional national rules of jurisdiction, which can include exorbitant bases of jurisdiction.178 The latter are subject to the bases of jurisdiction set out in the Recast Brussels I Regulation and exorbitant national bases are prohibited.179 If the traditional national bases of jurisdiction of a Member State are the same as the bases of jurisdiction under the Brussels I Recast there would be no discrimination as regards bases of jurisdiction.180 However, the reference to a list of rules of national jurisdiction of which Member States are to notify the Commission, which cannot be used against persons domiciled in a Member State,181 testifies to the extent of the discrimination that exists. In the case of England, service on the defendant whilst temporarily present in England was listed as an exorbitant basis of jurisdiction. But no mention was made of service out of the jurisdiction under the Civil Procedure Rules.182 This enables an English court to take jurisdiction in circ*mstances where, if the bases of jurisdiction under the Brussels I Recast were to be applied, it would not be able to do so. In such a case, there is discrimination against the defendant domiciled in a non-EU Member State.

9.57 How different national rules of jurisdiction are from the bases of jurisdiction under the Brussels I Recast varies very much from one Member State to another. In some Member States, national bases of jurisdiction were altered to bring them into line with the rules under the Brussels Convention. The Italian rules are the same, or at least very similar;183 the rules of the Netherlands are mainly the same.184 The only basis in the Netherlands that might be used in an exorbitant way is a rule based on forum necessitatis; that is it operates, inter alia, in the situation where there is no jurisdiction in any other Member State.185 At the other end of the spectrum, there was no attempt in England to assimilate traditional national bases of jurisdiction when the Brussels Convention came into effect in the UK.

9.58 A defendant who is domiciled outside the EU is not only deprived of the protection of the (generally) non-exorbitant bases of jurisdiction set out in the Brussels I Recast but also of its procedural safeguards in relation to service abroad.186 The defendant will however be protected under whatever procedural safeguards are available under the traditional national rules of the forum.187

9.59 If there is discrimination, the problem is exacerbated by the fact that a judgment granted in a Member State will be recognised and enforced in other Member States, regardless of the basis of jurisdiction taken in the judgment granting Member State.188

9.60 Article 6(1) Brussels I Recast can also be seen to generally differentiate between plaintiffs suing defendants domiciled in a Member State and those not domiciled in a Member State. One particular aspect of this is that Article 6(1), by providing recourse to national rules of jurisdiction where the defendant is domiciled outside the EU, means that plaintiffs from different Member States will have differing levels of access to national courts. For example, a national of France will be able to bring an action in France under the traditional national rule based on nationality. A citizen of another EU Member State, which does not have jurisdiction on this basis, will not be able to bring the action in the Member State of his nationality. The plaintiff may not be able to bring the action in any EU Member State and may not even be able to obtain trial in a third (non-EU Member) State. The latter situation raises a serious problem regarding access to justice. But even if trial is available in a third State, there is a denial of trial in the EU. There appears to be discrimination between different plaintiffs from different EU Member States. There is a possible further ground for a complaint of discrimination. This is a complaint that the French national rule of jurisdiction based on nationality is discriminatory. This will be considered below.189

9.61 Another aspect of the differential treatment of plaintiffs suing defendants domiciled in a Member State and those not domiciled in a Member State concerns ‘weaker’ plaintiff cases. Under the Brussels I Regulation, in the situation where the defendant was domiciled in a Member State, a plaintiff who was a consumer, an employee, or an insured obtained the protection of the special pro-weaker party regimes of jurisdiction rules set out in the Regulation.190 A different plaintiff, who was also a consumer, an employee, or an insured but was suing a defendant not domiciled in a Member State, was not so entitled. Moreover, if plaintiffs were unable to sue in a Member State, because national jurisdiction rules did not allow this, they would be denied the benefit of the mandatory substantive law rules in EU Member States protecting consumers, employees, or commercial agents, etc.191 The Commission’s proposal to extend the jurisdiction rules in the Regulation to defendants domiciled outside the EU192 would have dealt with this concern. The failure to enact this proposal left a problem. However, in the case of consumers and employees this has been met by the introduction of the right of a consumer and employee to sue in a Member State193 the other party and employer, even though that defendant is domiciled outside the EU.194

(b) Discrimination under Article 6(2) Brussels I Recast

9.62 At first sight, it may seem rather curious to be discussing discrimination under Article 6(2) Brussels I Recast, given that this provision was designed to prevent discrimination.195 However, it will be seen that by ending one form of discrimination this provision has led to other forms of discrimination.

9.63 The Heidelberg Report said that discrimination in relation to parties from non-Member States could be caused by what is now Article 6(2) Brussels I Recast, which allows for additional national grounds for jurisdiction in law suits against a third State domiciliary.196 This needs some elaboration. Article 6(2) increases the potential for discrimination against defendants. It has been seen that Article 6(1) Brussels I Recast leads to discrimination against defendants domiciled in non-EU Member States in cases where exorbitant national rules of jurisdiction are used, such as Article 14 of the French Civil Code. The effect of Article 6(2) is to open up trial in France, using Article 14, to plaintiffs who are domiciled in France but not nationals of France. The upshot is that Article 6(2) Brussels I Recast removes discrimination as between plaintiffs but increases it in relation to defendants.

9.64 The effect of Article 6(2) Brussels I Recast is that non-French nationals can only avail themselves of jurisdiction in France on the basis of Article 14 of the French Civil Code if they are domiciled in France. An Italian plaintiff who is domiciled in France can use Article 14 but an Italian national who is domiciled in Italy cannot do so. This can be said to involve discrimination on the basis of domicile. It also involves discrimination on the ground of nationality in that an Italian national (domiciled outside France) is not able to use Article 14 whilst a French national is so able. Discrimination on the ground of nationality is lessened but not got rid of altogether. Indeed Article 6(2) Brussels I Recast creates discrimination.197

(b) Discrimination Under the Brussels II bis Regulation

(i) Discrimination on the basis of nationality

(a) The nationality of both spouses

9.65 Under the Brussels II bis Regulation jurisdiction in matters relating to divorce, etc198 is allocated, inter alia, to the courts of the Member State of the nationality of both spouses.199 This does not differentiate between husband and wife but it might be argued that it differentiates between a couple who are both nationals of the same Member State and another couple who have nationalities in different Member States.

(b) Habitual residence and nationality

9.66 Under the Brussels II bis Regulation jurisdiction is also allocated, inter alia, to the courts of the Member State in whose territory the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made.200 There is an alternative to this, according to which jurisdiction is allocated to the courts of the Member State in whose territory ‘the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her ‘domicile’ there’.201 This has been said to differentiate on the basis of nationality between applicants who are habitually resident in the same Member State;202 the applicant who is a national of the Member State is more favourably treated in terms of the length of residence required to establish jurisdiction.

(c) Dual nationality

9.67 How does the provision allocating jurisdiction to the courts of the Member State of the nationality of both spouses203 operate where both spouses have the same dual nationality in two Member States? Do the spouses each have a choice of two Member States in which to bring the proceedings for divorce, etc under this provision? Or are they limited to just one Member State of nationality and, if so, which one? This issue came before the ECJ in Hadadi (Hadady) v Mesko (married name Hadadi (Hadady)),204where the former solution was adopted. This means that spouses who have the same dual nationality may have a wider choice of fora than those who do not. This could be said to be discrimination on the ground of nationality. But was this point taken in the case?

9.68 Some of the parties to the proceedings referred to decisions in which the ECJ considered the significance of the fundamental freedoms and the general prohibition on discrimination under EU law in cases of dual nationality.205 However, Advocate General Kokott suggested that the question of the scope of the fundamental freedoms did not arise ‘as the Regulation already contains sufficient evidence that nationality is the connecting factor’.206 It was argued that jurisdiction should be allocated to the more effective nationality. Again, some of the parties to the litigation inferred that this would be contrary to the fundamental freedoms. Advocate General Kokott gave her opinion that ‘the extent to which the fundamental freedoms impose limitations on the transposition of [the more effective nationality] need not be examined as the Regulation itself precludes priority being given to the more effective nationality’.207 However, this did not preclude argument over the interpretation of nationality and whether in cases of dual nationality it meant the one with the closest real connection (‘effective nationality’).

9.69 The ECJ said208 that if nationality in a case of dual nationality meant the more effective nationality this would have to be determined by habitual residence. However, this would amount to establishing a hierarchy between the grounds of jurisdiction under Brussels II bis not justified by the wording of those grounds in the Regulation. By contrast, a couple holding just one shared nationality would be able to establish jurisdiction in that State, even if not habitually resident there.209 Essentially, this point raises a non-discrimination on the ground of nationality concern. If the ECJ had accepted the ‘effective nationality’ argument, the couple with the same dual nationality would be differentiated from the couple with a single shared nationality. The former would be worse off than the latter in the sense that the former would not be entitled to petition in the jurisdiction of which they are nationals but where they are not resident,210 whereas the latter would. However, the ECJ made no reference to the ECHR or to fundamental rights under EU law. Nonetheless, the result in the case may be considered a good one in terms of ensuring equal treatment between couples with a single shared nationality and those with the same dual nationality.

(d) Domicile substituted for nationality in the case of the UK and Ireland

9.70 As indicated above, traditional common law domicile is substituted for nationality in determining the divorce jurisdiction of the British and Irish courts under Brussels II bis. This may work to the disadvantage of British and Irish nationals in certain circ*mstances. For example, an English couple living in the United States might be considered to have abandoned their English domicile of origin and therefore to have lost any entitlement to petition for divorce in England under Article 3(1)(b) Brussels II bis. A German couple in the same circ*mstances would be entitled to rely on their German nationality and to petition in Germany under Article 3(1)(b) Brussels II bis. Also a couple with dual British and Irish nationality will not enjoy access to both jurisdictions under Article 3(1)(b) Brussels II bis (as would be the case for a couple sharing the nationalities of two Continental Member States following Hadadi). While a person may have two (or more) nationalities, he or she can only have one single domicile at common law.

(ii) Residual jurisdiction

9.71 Article 7 Brussels II bis corresponds to Article 6 Brussels I Recast, although there are differences.211 The former provides that

It has been mentioned previously212 that Article 7(1) may apply where the husband and wife are nationals of different Member States and both are habitually resident in a non-EU Member State. It may also apply where one spouse is an EU national and the other is not and neither is resident within a Member State. Because the habitual residence of either the applicant or the respondent may confer ‘direct’ jurisdiction under Article 3 Brussels II bis, it follows that residual jurisdiction will be much less common than jurisdiction under national rules under the Brussels I Recast (that is where the defendant is domiciled in a non-EU Member State).213 The problem of denial of access to any court that can result from this provision was considered earlier.214 What we are now concerned with is the problem of discrimination. Many Continental Member States under their rules of national jurisdiction provide for jurisdiction for divorce, etc on the basis of the nationality of only one spouse.215 This means that, for persons who are nationals of these States, in the absence of any direct jurisdiction under Article 3, it may be possible to avail of residual jurisdiction in these States. In the UK and Ireland, Article 7 residual jurisdiction is based on the domicile of one spouse.216 Article 7 Brussels II bis is, however, subject to Article 6 Brussels II bis which precludes the invocation of residual jurisdiction against a person who is a national of a Member State (or domiciled within the UK or in Ireland) in any other Member State. There is also a parallel residual national jurisdiction in cases of parental responsibility under Article 14 Brussels II bis. Our discussion, though, will concentrate on Article 7 Brussels II bis.

(a) The concern to prevent discrimination

9.72 The function of Article 7(2) Brussels II bis has been described as being like that of what is now Article 6(2) Brussels I Recast.217 It assimilates the position of an applicant who is a national of a Member State (A) who is habitually resident within the territory of another Member State (B) with the nationals of that Member State (B) so that such applicants may avail themselves of the rules of residual jurisdiction available in Member State B (pursuant to Article 7(1) Brussels II bis). It seeks to stop discrimination as between applicants who are Member State nationals. It is noteworthy that the benefit of Article 7(2) Brussels II bis (unlike Article 6(2) Brussels I Recast) is explicitly confined to Member State nationals—and to that extent Article 7(2) Brussels II bis is discriminatory in a way that Article 6(2) Brussels I Recast is not. In practice however Article 7(2) is of very limited significance because the habitual residence which triggers its operation will often confer direct jurisdiction under Article 3.218

(b) Potential discrimination under Articles 6 and 7 Brussels II bis

9.73 Article 7(1) can be said to discriminate between respondents who are subject to the rules of jurisdiction under Articles 3, 4, and 5 Brussels II bis and those who are subject to residual jurisdiction. The former are subject to the bases of jurisdiction set out in the Regulation and these generally require a relatively strong connection with the forum. The latter are subject to traditional national rules of jurisdiction, which can include exorbitant bases of jurisdiction. For example, Article 14 of the Civil Code would give a French court jurisdiction if the petitioner is a French national. Jurisdiction under Article 3 Brussels II bis cannot be based merely on the nationality of the applicant alone.219 Similarly, a divorce could be obtained under the English rules of residual jurisdiction on the basis of either party being domiciled in England whereas the Regulation refers to the domicile of both parties.220

9.74 As previously discussed, Article 6 Brussels II bis shields certain respondents from residual jurisdiction in Member States to which they have no connection. Respondents who are nationals of Continental States and those who are domiciled in either the UK or Ireland are protected against the invocation of residual jurisdiction other than in the jurisdiction of their nationality (or domicile). It follows that European respondents living in third countries are treated favourably by comparison with non-European respondents living in third countries. Article 6 Brussels II bis therefore reduces the discrimination against European respondents resident in third countries, but increases the discrimination against non-European respondents.221

9.75 By providing recourse to national rules of jurisdiction, Article 7(1) Brussels II bis could be said to discriminate between applicants from different Member States. An applicant from a Member State which has wide rules of residual jurisdiction, such as England, is more favourably placed than one from say the Netherlands.222 The applicant from England may well be able to bring his action in England whereas the applicant from the Netherlands would be unable to bring his action in that Member State. This involves discrimination as between applicants.

9.76 There is a further form of difference in treatment of applicants arising from the fact that, according to Article 7(1) Brussels II bis, recourse can only be had to national rules of jurisdiction where no Member State has jurisdiction pursuant to the general bases of jurisdiction under Article 3. In Sundelind Lopez v Lopez Lizazo, a Swedish national who was married to a Cuban was unable to petition for divorce in Sweden under its traditional national rules because France had jurisdiction under Article 3 Brussels II bis; France being the last place in which the parties had been habitually resident and the wife continued to reside there.223 In contrast, a Swedish national who had ceased to reside in France (and had taken up residence in Switzerland) would be able to petition in Sweden in these circ*mstances. This could be regarded as being a form of difference in treatment based on residence.

9.77 It has been mentioned that a majority of Member States allow jurisdiction under their national rules of residual jurisdiction on the basis of a party being a national of that Member State. Citizens of other Member States that do not allow jurisdiction on this basis are in a different position. Such citizens may be unable to have their divorce tried in the EU and may not even be able to obtain trial in a third State. The latter situation raises a serious problem of access to justice. But even if trial is available in a third State there is a denial of trial in the EU. This could be regarded as being discrimination between two groups of EU citizens.

9.78 In those very limited cases in which it is applicable, Article 7(2) Brussels II bis increases the possibility of discrimination against respondents. It has been seen that under Article 7(1) there is discrimination against respondents in cases where exorbitant national rules of national jurisdiction are used, such as Article 14 of the French Civil Code. The effect of Article 7(2) Brussels II bis is to open up trial in France using Article 14 to applicants who are habitually resident in France but not nationals of France. The upshot is that Article 7(2) removes discrimination as between certain applicants but increases it in relation to respondents.

9.79 The effect of Article 7(2) Brussels II bis is to create discrimination as between applicants from different EU Member States. Non-French nationals can only avail themselves of jurisdiction in France on the basis of Article 14 of the French Civil Code if they are habitually resident in France. A Dutch applicant who is habitually resident in France can use Article 14 but a Dutch national who is habitually resident in the Netherlands cannot do so. This can be said to involve discrimination on the basis of habitual residence. It also involves discrimination on the ground of nationality in that a Dutch national (habitually resident outside France) is not able to use Article 14 whilst a French national is. Discrimination on the ground of nationality is lessened but not got rid of altogether; indeed discrimination is created.

9.80 As indicated above, while Article 7(2) Brussels II bis seeks to avoid discrimination between EU nationals, it does not extend to those who have the nationality of a third country (even if they are habitually resident in a Member State).224 Article 7(2) explicitly discriminates between nationals of an EU Member State and those with the nationality of a third country.

(c) Is there incompatibility with the right not to be discriminated against?

9.81 Although there was a widespread acceptance in the National Reports on Brussels I that there was ‘discrimination’ under what is now Article 6(2) Brussels I Recast or more generally in relation to Article 6, this did not appear to raise any real concern and no mention was made of human rights. In a number of National Reports, this was seen as being a theoretical form of discrimination—discrimination in principle—rather than something that caused problems in practice.225 Other National Reports said that discrimination caused by exorbitant national bases of jurisdiction could be justified,226 although it is not clear whether this was referring to justification in terms of private international law or in terms of human rights. We will now turn to consider the question that was not addressed in the National Reports: does the so-called ‘discrimination’ under Article 6 Brussels I Recast suggest a violation of an individual’s rights under Article 14 ECHR, Article 1 Protocol 12 ECHR or Articles 20 and 21 CFREU? The same question needs to be asked in relation to the instances of so-called ‘discrimination’ under Brussels II bis.

(i) Non-discrimination under the ECHR

9.82 There has been relatively little case law from the ECtHR or the European Commission on Human Rights regarding jurisdiction and Article 14 ECHR and none in relation to Article 1 Protocol 12 ECHR. Therefore much of the discussion that follows is highly speculative.

(a) Discrimination under the Recast Brussels I Regulation

9.83 We are concerned with the situation where the defendant is domiciled outside the EU and the difference in treatment is on the ground of domicile. This could lead to a complaint brought against an individual Member State.227 An example of this is as follows. A defendant domiciled outside the EU, relying on Article 14 ECHR taken together with Article 6 ECHR, brings a complaint against the UK on the ground of being subject to exorbitant jurisdiction in England whereas a defendant domiciled outside the UK228 but in another EU Member State would not be.229

9.84 The difference in treatment relates to being subjected to the jurisdiction of the English courts. It has been argued above that a trial resulting from an exorbitant exercise of jurisdiction may be one that interferes with the right to a fair trial of the defendant. In fact, the exercise of jurisdiction by national courts will always engage the right to fair trial.230 That is, the right to a fair trial should always be respected when jurisdiction is taken. Therefore, any difference in treatment regarding the taking of jurisdiction will fall within the ambit of Article 6 ECHR.

9.85 What is less clear is whether a defendant domiciled in the EU and one domiciled outside the EU are in ‘analogous’ positions or ‘relevantly similar situations’. Arguably they are not. In Carson v UK the ECtHR emphasised the purpose of the publicly funded pension scheme to dismiss a claim that two groups were in an analogous situation: the publicly funded pension system was ‘primarily designed to serve the needs of those resident in the United Kingdom, [and so] it is hard to draw any genuine comparison with the position of pensioners living elsewhere, because of the range of economic and social variables which apply from country to country.’231 It might be argued that the Brussels I Recast serves the requirements of the EU internal market232 and as such those who are subject to it are not in a comparable situation to those who are not. They are in essentially different factual circ*mstances. The Brussels I Recast is intended to provide a regime that is EU-wide based on general principles that attach great significance to the domicile of the defendant. Furthermore, we have seen above that in Johnston v Ireland the ECtHR refused to accept that the position of a couple resident and domiciled in Ireland was the same as that of a couple resident in Ireland but domiciled abroad for the purposes of recognition of a foreign divorce.233 The Irish private international law rules, which had not been departed from in practice, meant that no comparison could be made. The private international law connecting factor of domicile served to preclude comparison.

9.86 However, it is far from clear that the ECtHR (or national courts) would take this approach. It has been noted above that, given the difficulties in assessing whether there is a suitable comparator group, the courts have often avoided the question of whether there is an analogous situation.234 Instead the courts have proceeded with an analysis of whether the difference in treatment is in respect of a prohibited ground and whether it can be justified for the purposes of Article 14 ECHR.

9.87 Assuming that there is differential treatment, this is on the basis of domicile and this will fall under the Article 14 ECHR category of ‘other status’. There is no evidence to suggest that this is a ground of differentiation for which the ECtHR requires particularly weighty reasons as justification. Bearing this in mind, we can now consider whether there is some objective and reasonable justification for the application of the national rules regarding jurisdiction rather than the EU rules regarding jurisdiction. This distinction in treatment is founded on the basis that there is a special legal regime that has been created by the Brussels I Recast for the EU which is to be applied to those domiciled in the EU. The purpose of this special regime is to develop ‘an area of freedom, security and justice’ and to ensure the ‘sound operation of the internal market’.235 From this point of view the territory of the Member States can be regarded as a single entity.236 Furthermore, as the Recitals to the Brussels I Recast state: ‘[t]here must be a connection between proceedings to which this Regulation applies and the territory of Member States’ and that ‘rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile’.237 The application of EU bases of jurisdiction for EU defendants and national rules for non-EU defendants appears to serve all these aims238 and therefore looks to be entirely rational. Certainly the difference in treatment would fall within the Contracting State’s margin of appreciation. As such, it is submitted that there would be no violation of Article 14 ECHR. This outcome is supported by the ECtHR’s judgment in Moustaquim v Belgium and the deference shown to the operation of a regime created by the EU legal order when justifying such differential treatment.239

9.88 It is arguable that the differential treatment of defendants domiciled outside the EU is in fact indirect discrimination on grounds of nationality on the basis that foreign nationals are more likely to be affected by Article 6 Brussels I Recast. However, even on this basis, it is suggested that there will be no violation of Article 14 taken together with Article 6(1) ECHR given the deference accorded by the ECtHR to the EU distinction between EU citizens and third country nationals, as demonstrated in Moustaquim. There do not appear to be any reasons to suggest that this distinction is inappropriate in the context; in fact the reasons considered above suggest that it is appropriate.

9.89 The analysis is the same for the other instances of differential treatment of defendants domiciled abroad, resulting from the application of Article 6 Brussels I Recast.

9.90 Where the application of Article 6(1) Brussels I Recast means that there is a difference of treatment of plaintiffs who have differing levels of access to national courts across the EU this will not constitute a violation of Article 14 ECHR. For example, the fact that a French national may be able to use the French jurisdiction rule based on nationality but a similar rule does not exist in Italy for Italian nationals will not be discrimination for the purposes of the ECHR. The Article 14 ECHR obligation does not extend to ensuring that there is no unjustified differential treatment of persons between the various ECHR Contracting States; it is limited to ensuring that there is no such treatment by the ECHR Contracting State itself. In fact, any ECHR concern regarding discrimination on the basis of nationality in relation to the right of access to a court is actually met by Article 6(2) Brussels I Recast, which provides that, as against a defendant domiciled in a non-Member State, persons domiciled within a Member State, regardless of nationality, can avail themselves of national rules of that Member State regarding jurisdiction. The problem lies with the national rule. Where it is argued that Article 6(2) Brussels I Recast (indirectly) differentiates between plaintiffs on the basis of domicile, it is suggested that the analysis presented above regarding differential treatment of defendants domiciled abroad is applicable and there would be no violation of Article 14 taken together with Article 6 ECHR.

(b) Discrimination under Brussels II bis

9.91 It is submitted that a couple who are excluded from using the ground of jurisdiction based on the common nationality of the husband and wife because they have separate nationalities are not subject to discrimination contrary to Article 14 taken in conjunction with Article 6 ECHR240 (nor Article 1 Protocol 12 ECHR). Even if it is assumed that such a couple is in an analogous position to those with a common nationality, the rule can be objectively justified. The basis of the difference in treatment is the mixed-nationality status of the couple. The common nationality rule is intended to ensure that a jurisdiction with a close link to both spouses will be able to decide on matters relating to divorce, etc, and this can constitute an objective justification. In Ammdjadi v Germany the ECtHR described the differentiation for all family law issues according to nationality as a ‘well-known principle’ aimed at ‘protecting a person’s close connection with his or her home country’ and the decisiveness of a person’s nationality could not be considered to be without objective and reasonable justification.241 The case concerned a common nationality rule identifying the applicable law. The ECtHR refused to condemn this rule even though it led to a loss of pension rights which the applicant might have enjoyed under the law of her habitual residence. In light of this decision from the ECtHR, it seems uncontroversial that a rule seeking to establish jurisdiction to hear matters relating to divorce, etc on the basis of joint nationality will also be acceptable. As indicated above, the criterion set out in Article 3(1)(b) Brussels II bis is joint domicile where the Irish and British courts are concerned. This jurisdictional rule is also likely to survive scrutiny for compliance with Article 14 ECHR. In Johnston v Ireland a divorce recognition rule based on the common domicile of the parties was considered to be compatible with Article 14 taken with Article 8 ECHR.242 Furthermore, since Article 3 Brussels II bis provides alternative bases of jurisdiction for spouses of mixed nationality (or mixed domicile) based on habitual residence, the impact of the differential treatment on grounds of nationality (or domicile) is likely to be considered proportionate.

9.92 It has been seen that one of the bases of jurisdiction set out in Article 3(1)(a) Brussels II bis is explicit in discriminating on the ground of nationality. An applicant who has resided in a Member State for at least six months immediately before the application was made and is a national of that Member State is able to bring proceedings for divorce, etc in that Member State, whereas another resident in the same Member State, who is not a national, is denied access to the courts until resident there for a year. The latter may complain of discrimination on the ground of nationality.

9.93 Whilst the situation may fall within the ambit of a Convention right (for example, the right of access to a court under Article 6(1) ECHR), is there differential treatment of persons in an analogous or relevantly similar situation? Both applicants are resident in the Member State and seek to bring divorce (or other) proceedings. The Brussels II bis regime applies in both circ*mstances. As such there is certainly an argument that there is differential treatment for the purposes of Article 14 ECHR and that this difference in treatment is based on nationality. This is a particularly sensitive ground and, accordingly, very weighty reasons are required to justify such a difference in treatment. Bearing this in mind, is there an objective and reasonable justification for this difference in treatment? Selecting as part of a basis of jurisdiction in Brussels II bis a rule that openly provides for differential treatment on the ground of nationality looks instinctively to be suspect. Nonetheless, the ECtHR is likely to accept that the use of nationality in conjunction with habitual residence pursues a legitimate aim insofar as Article 3 Brussels II bis seeks to give priority to those jurisdictions with a ‘genuine connection’243 or a ‘real link’.244 It is not unreasonable to take the view that these criteria are more readily satisfied by those who return to reside in the jurisdiction of their nationality (by comparison with those who take up residence in a State with which they were previously unconnected). It would appear, then, that there is a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised.’245

9.94 As discussed above,246 Articles 6 and 7 Brussels II bis draw a sharp distinction between respondents who are nationals of EU Member States (or domiciled—in the common law sense—in the UK or Ireland) and those who are not. While the Brussels I Recast allows for exorbitant jurisdiction against those domiciled outside the EU irrespective of nationality, Brussels II bis discriminates directly on grounds of nationality, and reserves the full effects of exorbitant jurisdiction for third country nationals residing outside the EU. EU nationals residing outside the EU are only exposed to residual jurisdiction in their own Member State of origin.

9.95 In assessing the possibility of a violation of Article 14 ECHR under Brussels I Recast it was noted that those domiciled within the EU, and those domiciled without, might reasonably be considered not to be in an analogous position.247 It was also noted that the differential treatment of defendants flowed directly from a core principle of the Brussels system, namely that jurisdiction in a Member State should generally be based on the defendant’s domicile.248 By comparison with the position under Brussels I Recast, any argument under Brussels II bis that third country nationals resident outside the EU, and EU nationals resident outside the EU, are not in an analogous situation is more difficult to maintain. The only differentiating factor is nationality and that is, as noted above, a sensitive ground of distinction. Nor is there any logical link between the core jurisdictional philosophy of Brussels II bis and the treatment of third country nationals,249 while, as we have seen, the differential treatment of non-domiciled defendants under the Brussels I Recast is linked to the basic jurisdictional premise of that Regulation. In these circ*mstances, a US national, subjected to residual divorce jurisdiction in France (in circ*mstances where the parties have resided continually in the US and where the applicant’s French nationality reflects historic connections only) may well succeed in an argument that the exercise of jurisdiction violates Article 14 taken with Article 6 ECHR. An EU national unconnected to France could not be subjected to French divorce jurisdiction in similar circ*mstances.

9.96 As noted above,250 Article 7(2) Brussels II bis is also directly discriminatory insofar as it is explicit in benefitting EU nationals only. However, it is difficult to envisage circ*mstances where Article 7(2) might be found to violate Article 14 ECHR. The applicant must be habitually resident in the forum Member State in order for Article 7(2) to come into play. Habitual residence is generally considered to be an acceptable basis for divorce jurisdiction251 and provides the main basis for direct jurisdiction (albeit with some additional requirements) under Article 3 Brussels II bis. Insofar as the existence of Article 3 jurisdiction precludes recourse to residual jurisdiction, it seems that Article 7(2) Brussels II bis is unlikely in practice to give rise to complaints of discrimination.

9.97 As discussed above, Brussels II bis might also be said to give rise to discrimination insofar as national residual rules vary (eg, an English applicant is better protected than a Dutch one252)—and insofar as English and Irish litigants may suffer certain disadvantages insofar as ‘domicile’ is substituted for nationality under Article 3 Brussels II bis in determining the jurisdiction of the British and Irish courts.253 These differences will not, however, violate Article 14 ECHR, because, as noted above in the discussion of Brussels I Recast,254 Article 14 ECHR does not extend to ensuring that there is no differential treatment of persons between the various ECHR Contracting States. It is limited to ensuring that there is no such treatment by the ECHR Contracting State itself.

(c) The presumption of equivalent protection

9.98 It must be borne in mind that if a complaint is made to the ECtHR alleging discrimination arising from the bases of jurisdiction set out in the Brussels I Recast and Brussels II bis, it is unlikely that a violation will be found because of the deference shown to the performance of EU law obligations. It will be recalled that the ECtHR operates a presumption of equivalent protection whereby it is assumed that the substantive protections of human rights offered by EU law (including the CFREU) and the procedural protections of these rights offered by the combined efforts of national courts and the ECJ provide sufficient protection from violations of rights in the Convention.255 It is likely that the ECtHR will apply this presumption to a Member State’s operation of EU jurisdiction rules.256 Only where the applicant can show that the protection mechanisms were manifestly deficient will this presumption be rebutted.257 Of course, this presumption of equivalent protection will not apply where the complaint is directed towards rules of residual jurisdiction (derived from national law and made available at the discretion of the Member State).258

(d) Conclusion

9.99 Although the position is uncertain, most of the instances of so-called discrimination under Brussels I Recast and Brussels II bis will not lead to a violation of Article 14 ECHR. The most questionable instances of discrimination arise under Brussels II bis. One suspect provision is the basis of jurisdiction under Article 3(1)(a) Brussels II bis concerned with habitual residence and nationality, but it has been suggested that this difference in treatment appears to be justified. More concerning is the potential for discrimination against respondents who are third country nationals resident outside the EU pursuant to Articles 6 and 7 Brussels II bis.

(ii) EU fundamental rights

9.100 It has been seen that a breach of EU fundamental rights opens up a different set of remedies from those under the ECHR.259 So far we have been concerned with differences of treatment that arise in the context of the operation of EU Regulations on private international law. At first blush, EU fundamental rights will apply. However, most of the situations that lead to allegations of discrimination are such that there is a very real issue as to whether this is in fact the case.

(a) Do EU fundamental rights apply?

9.101 It will be recalled that EU Regulations must be applied by the courts and other competent authorities of the Member States in observance of EU fundamental rights and the principles recognised in the Charter and the Treaties.260 But if a national court of a Member State is applying traditional national rules of jurisdiction it has been submitted above that EU fundamental rights do not come into play.261 Thus, if the complaint is about the interpretation of a basis of jurisdiction set out in the Recast Brussels I Regulation or the Brussels II bis Regulation, the Charter and Treaty protections of fundamental rights will apply.262 In contrast, if the complaint is as to a national basis of jurisdiction, these rights will not apply.263 There is, though, a grey area in the situation where, in a civil and commercial matter, the defendant is domiciled outside a Member State or, in a case of jurisdiction for divorce etc, the bases of jurisdiction set out in Article 3 Brussels II bis Regulation do not apply.264 The Recast Brussels I Regulation, in the former situation, and the Brussels II bis Regulation, in the latter situation, refer to national law. Differences between national rules of jurisdiction may lead to differences in treatment. There is a view that in this situation the Charter should not apply.265 Any discrimination arises from differences in national laws.

9.102 Alternatively this situation could be regarded as involving a failure of the Recast Brussels I Regulation and the Brussels II bis Regulation to operate where the defendant is domiciled outside the EU or where the bases of jurisdiction set out in Article 3 Brussels II bis do not apply. It can be argued that the fault lies with the structure of the Recast Brussels I Regulation and Brussels II bis Regulation. Any complaint about differences in treatment under different national laws is essentially about the structure of the Regulations and the provisions regarding residual jurisdiction (Article 6 Brussels I Recast and Article 7 Brussels II bis). These Regulations must comply with the Charter and Article 18 TFEU, which are both primary sources of EU law. In contrast, if a complaint is made that a specific national law discriminates, for example it only allocates jurisdiction to husbands and not wives, the Charter will not apply.266 We will now apply these principles to the various situations involving discrimination.

9.103 Any concerns regarding differential treatment of a defendant on the basis of domicile arising from the operation of Article 6 Brussels I Recast (defendant domiciled in a third State) should be regarded as a complaint about the structure of that Regulation and the Charter and Article 18 TFEU should apply. As regards distinctions made on the basis of habitual residence and nationality, and joint nationality, in the Article 3 bases of jurisdiction in Brussels II bis, the EU fundamental rights protections should apply. Likewise, any discrimination arising from the distinctions underlying the operation of Articles 6 and 7 Brussels II bis (residual jurisdiction) should be regarded as a complaint about the structure of that Regulation.

9.104 With both Regulations, even the situation where there is discrimination between different EU citizens caused by differences in national rules of jurisdiction can be regarded as a complaint about the structure of the respective Regulations. This would encompass a complaint by a defendant domiciled outside the EU of being subject to an exorbitant national rule of jurisdiction when a defendant domiciled within the EU would not be. This is not a complaint about the exorbitant rule itself discriminating but about when that rule applies, that is about when the EU Regulation applies. With a complaint of discrimination as between respondents under Articles 6 and 7(1) Brussels II bis and as between applicants under Article 7(2) Brussels II bis, the position is more straightforward. It is in each case the terms of the relevant provision that cause discrimination and, accordingly, the Charter should apply.

(b) A breach of the fundamental rights to equality and non-discrimination

9.105 When considering possible instances of discrimination against the defendant on grounds of domicile arising from the operation of Article 6 Brussels I Recast, this is likely to raise a complaint under Article 20 CFREU. It has been argued above that Article 21(1) CFREU tends to be used in instances of discrimination on the status grounds listed in that provision. It might be argued that there is indirect discrimination on grounds of nationality given that those who are domiciled abroad, and therefore subject to the rules on residual jurisdiction, are more likely to be foreign nationals. However, this will not be captured by either Article 21(2) CFREU or Article 18 TFEU, which, as has been seen above, only provide protections against unjustified differential treatment of nationals of EU Member States.267 It is suggested that Article 6 Brussels I Recast is compatible with the right to equality before the law provided by Article 20 CFREU. The difference in treatment must relate ‘to the legally permitted aim pursued by the legislation in question, and [be] proportionate to the aim pursued’.268 As noted above, the Brussels I Recast creates a special legal regime, which is to be applied to those domiciled in the EU in order to develop the ‘area of freedom, security and justice’ and the ‘sound operation of the internal market’, and which is based on the principle ‘that jurisdiction is generally based on the defendant’s domicile’.269 As such, the difference in treatment is objectively justified.

9.106 A different conclusion is suggested, however, in relation to a complaint of discrimination between plaintiffs domiciled within the EU arising from the operation of Article 6 Brussels I Recast. It could be argued that this is indirect discrimination on grounds of nationality as the difference of treatment on the basis of domicile principally affects the nationals of each Member State. Article 6 Brussels I Recast allows for different jurisdiction rules to operate across the EU depending on the domicile, or arguably nationality, of the plaintiff. Is such differential treatment justified for the purposes of Article 20 (domicile) or Article 21(2) CFREU and Article 18 TFEU (nationality)? Arguably it is not. There does not appear to be any objective rationale for the differences in treatment on the basis of domicile or nationality of EU citizens, given the objectives of the Brussels I Recast.

9.107 As regards possible violations of the rights to equality and non-discrimination under Article 3 Brussels II bis, the analysis is similar to that set out in relation to Article 14 ECHR.270 At the time of the adoption of the Brussels II Regulation271 (the predecessor to Brussels II bis), commentators argued that the use of the nationality criterion in Article 2 Brussels II (now Article 3 Brussels II bis) offended Article 12 EC (now Article 18 TFEU).272 However, it is submitted that there is no such incompatibility. As observed previously,273 jurisdiction rules based on joint nationality, and nationality combined with habitual residence, are intended to ensure a ‘real link’ and a ‘genuine connection’. One might also infer from Hadadi,274 insofar as the ECJ rejected an interpretation which would have curtailed the use of Article 3(1)(b) (jurisdiction based on joint nationality), that the ECJ does not share the concerns of those who see nationality-based jurisdiction as suspect per se under Article 18 TFEU.275

9.108 The differential treatment of Irish and British nationals by comparison with nationals of Continental States276 is also likely to survive scrutiny. Common law domicile often aligns with nationality277 and to that extent the two connecting factors are not radically different. Furthermore, the loss of an English domicile of origin will usually signify the absence of any ongoing ‘real link’ or ‘genuine connection’ with England, making a denial of Article 3 divorce jurisdiction reasonable. The use of ‘domicile’ is also justifiable insofar as it facilitated the integration of Brussels II bis within the pre-existing legal frameworks of the common law States278 and showed respect for diversity of legal cultures (in line with Article 22 CFREU279).

9.109 In terms of residual jurisdiction under Article 7 Brussels II bis, it is suggested that the differences in treatment experienced by applicants who are nationals of EU Member States could amount to indirect discrimination on grounds of nationality or habitual residence (and the equivalent analysis in respect of Article 6 Brussels I Recast may be applied here, too).280 As already noted, the most striking and overt distinctions drawn by Articles 6 and 7 Brussels II bis are between respondents who are Member State nationals and those who are third country nationals. Such distinctions will not offend Article 18 TFEU or Article 21(2) CFREU which are solely concerned with distinctions between Member State nationals. However, they may offend Article 20 CFREU applying the same analysis as that under Article 14 ECHR.281

9.110 Although most of the suggested instances of discrimination are not problematic in terms of fundamental rights, there are two areas of real concern. The failure to harmonise residual jurisdiction rules in both the Brussels I Recast and Brussels II bis could lead to discrimination on grounds of nationality as between applicants. This would be inconsistent with the Charter and Article 18 TFEU. The differential treatment of respondents who are third country nationals residing outside the EU (and their exposure to residual jurisdiction under Articles 6 and 7 Brussels II bis) may breach Article 20 CFREU.

(d) The solution

9.111 As has been demonstrated above, there are relatively few instances where there might be a real concern regarding discrimination in the operation of the EU jurisdiction rules. Nonetheless, it is suggested that the residual jurisdiction rules might result in discrimination. These situations have caught the attention of private international lawyers when considering reform. A discussion of these reform proposals tells us something about the attitude of private international lawyers towards the risk of discrimination.

(i) The Brussels I Recast

9.112 In the Heidelberg Report a problem of discrimination was perceived in relation to the treatment of defendants domiciled in non-EU Member States under what was then Article 4 Brussels I Regulation (now Article 6 Brussels I Recast). The Report examined the theoretical ways in which the then Brussels I Regulation could be reformed to eliminate this perceived discrimination.282 The conclusion was a rather tentative suggestion that it would be advisable as a first step to extend special jurisdiction under what are now Articles 7 and 8 Brussels I Recast283 to cases involving third State defendants and to allow a reference to national law only on the basis of a residual provision. This residual jurisdiction could operate where no court of a Member State had jurisdiction under the bases of jurisdiction set out in the Brussels I Recast.284 It was admitted that this would not get rid of discrimination altogether but it would mitigate the differences between the laws of Member States and would constitute a more harmonised system of justice.285

9.113 The Commission in its proposal for reform of the Brussels I Regulation saw the problem where the defendant is domiciled in a non-EU Member State rather differently. Discrimination was not mentioned. Instead, the problem was seen in terms of unequal access to justice. The radical solution to this problem was a proposal to extend the bases of jurisdiction under the Regulation to third State defendants. This would have had the unintentional, but desirable, consequence of effectively preventing any discrimination. As has been seen,286 this radical solution was not accepted and under the Recast Brussels I Regulation there is no wholesale extension of the EU jurisdiction rules to defendants domiciled outside the EU. The upshot is that pre-existing problems of discrimination remain.

(ii) Brussels II bis

9.114 It will be recalled287 that the Commission in 2006 proposed changes to the jurisdiction provisions in the Brussels II bis Regulation, as well as the introduction of rules on the law applicable in matrimonial matters.288 It identified a problem of lack of access under the current rules,289 but made no mention of the prohibition of discrimination. It proposed allowing the spouses to choose the court in proceedings relating to divorce and legal separation.290 This would improve access by enabling the parties to choose trial in a Member State where just one party was a national.291 It also proposed a uniform and exhaustive rule on residual jurisdiction, rather than referring to national rules of jurisdiction.292 This again was seen as improving access for spouses who live in a third State but retain a strong link with a Member State of which either is a national or in which they have resided for a certain period.293 It was proposed to delete Article 6 Brussels II bis.294 Although this was not mentioned by the Commission, these proposals would also have the effect of ending differences in treatment amongst applicants and respondents under Brussels II bis.295 By ending recourse to national law it would also have meant an end to differential treatment under national law, which is examined below. Lack of unanimity on the proposal meant that it was dropped by the Council. The part of the proposal that introduced rules on the applicable law was taken forward using enhanced cooperation and became Rome III. However, a 2014 Commission Report suggests that the 2006 proposals regarding jurisdiction may be put forward for consideration again in the near future.296 This Report indicates that the Commission remains concerned at the ‘absence … of a uniform and exhaustive rule on residual jurisdiction’ and the resulting ‘unequal access to justice’.297

2. Discrimination under National Rules

(a) Nationality as a Basis of Jurisdiction

9.115 Earlier, when examining national rules of jurisdiction, it was seen that a number of EU Member States, but not the UK, allow for jurisdiction on the basis of the plaintiff’s nationality, the most notorious being Article 14 of the French Civil Code.298 This and other forms of ‘exorbitant’ jurisdiction raise concerns in relation to a right to a fair trial.299 Equally, jurisdiction on the basis of the plaintiff’s nationality has raised concerns in relation to discrimination under Article 14 ECHR.300 Jurisdiction based on the nationality of the plaintiff is the most blatant and extreme example of a jurisdictional difference in treatment based on nationality only. Nationality is the whole basis of jurisdiction. It distinguishes between plaintiffs on this basis alone. The respect afforded by the ECtHR to connecting factors in private international law, including nationality, should not extend to the use of plaintiff’s nationality as the sole reason for granting access to the courts. There must be further reasons in conjunction with nationality to justify differential treatment. For example, in Ammdjadi301 the ECtHR placed emphasis on nationality as being an acceptable connecting factor for the purposes of the applicable law, but this was in the context of joint nationality where the relief sought was linked to personal status. In Granos Organicos the ECtHR accepted that reciprocity played a role in determining whether differential treatment on the basis of nationality was justified, although a further consideration for the ECtHR was ‘the necessity to control the use of public funds for financing litigation by private companies’.302 These further reasons widened the margin of appreciation afforded to the respondent States when differentiating on grounds of nationality. It is submitted that there is no objective and reasonable justification for distinguishing between plaintiffs purely on the basis of nationality, with no other considerations being taken into account. The fact that where this basis of jurisdiction is used it can lead to an unfair trial for the defendant also points to the conclusion that this difference in treatment is not justified. In conclusion, the use of the plaintiff’s nationality as a basis of jurisdiction without further reason will constitute a violation of Article 14 taken together with Article 6 ECHR.

(b) Nationality and State immunity

9.116 The English Court of Appeal has addressed concerns that limitations to jurisdiction arising from the application of rules of State immunity might be discriminatory. In Benkharbouche and Janah v Embassy of Sudan and Libya the English rules regarding State immunity in employment claims were successfully challenged as being discriminatory on grounds of nationality.303 Ms Janah, a Moroccan national, was a member of staff at the Libyan embassy in London and brought claims against Libya for unfair dismissal, racial discrimination, harassment, and a breach of the EU Working Time Regulations. Libya pleaded State immunity. Section 4(1) of the State Immunity Act 1978 provides that there is no State immunity in relation to contracts of employment where the work is performed in the UK or the contract of employment was made in the UK. However, section 4(2)(b) of the State Immunity Act sets out an exception to this rule if ‘at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there’. Ms Janah claimed that to accord the Libyan government immunity from suit because she was not a British national nor habitually resident in the UK at the time her contract of employment was made constituted a violation of Article 14 taken together with Article 6 ECHR.

9.117 The Court of Appeal held that there was no generally recognised rule of international law that required such a distinction to be made.304 Rather, the purpose of the difference in treatment seemed ‘to be a need to identify those cases in which the United Kingdom has a sufficient jurisdictional interest in the claim based, in particular, on its interest in adjudicating on the employment rights of its local labour force.’305 However, according to the Court of Appeal, to exclude those who happened to be foreign nationals or habitually resident outside the UK at the time their employment contract was made could not be justified. A sufficient jurisdictional link had already been established by virtue of section 4(1) of the State Immunity Act: namely that the exception to immunity only applied where proceedings related to an employment contract concluded in the UK or where the work was (wholly or partially) performed there.306 Therefore, section 4(2)(b) of the State Immunity Act was incompatible with Article 14 ECHR.

9.118 In Benkharbouche the Court of Appeal hinted that there was one instance of discrimination on grounds of nationality under the State immunity rules which might be justified. Section 4(2)(a) of the State Immunity Act provides that the exception to immunity in employment disputes will not apply where the employee is a national of the employing State at the time when proceedings are brought. The Court of Appeal noted that the justification for this was that ‘as between the state and its own nationals no other state should claim priority of jurisdiction over claims arising out of employment, in particular as remedies and access to courts exist in the employer state’ and that this justification had been accepted by the Working Group of the International Law Commission that drafted the UN Convention on State Immunity.307

(c) Nationality and abuse of process

9.119 In Ames and McGee v The Spamhaus Project Limited,308 Warby J had to consider an application for striking out defamation proceedings brought by claimants, who were foreign nationals resident abroad, on the basis of abuse of process.309 This involved examining the claimant’s connections with England and their reputation there. Warby J cautioned that it was necessary to beware of treating foreigners differently simply because they were foreigners.310 This could lead to unjustified discrimination in the provision of access to justice based on nationality. However, on the facts, the application failed.

IV. Security for Costs and Human Rights

9.120 In English law, ancillary to jurisdiction and recognition and enforcement of foreign judgments is the matter of security for costs. The principles adopted by the English courts in respect of the award of such security have been amended over the past two decades in the light of human rights concerns in relation to the right to a fair trial and the prohibition of discrimination. These concerns and their impact on the English principles will now be examined.

1. The Right to a Fair Trial

9.121 In Tolstoy Miloslavsky v UK311 the ECtHR had to consider whether an order from an English court for security for costs for an appeal,312 to be provided in the sum of £124,900 within 14 days, was compliant with Article 6(1) ECHR.313 The applicant maintained that the order impaired the essence of the right of access to a court and was disproportionate. The ECtHR rejected this submission. It considered that the security for costs order pursued a legitimate aim, namely to protect the respondent to the appeal from facing an irrecoverable bill for legal costs if the applicant were unsuccessful in his appeal.314 The entirety of the proceedings had to be considered.315 It was undisputed that the applicant enjoyed full access to the English court in the first instance proceedings. Although the sum requested as security was very substantial and the deadline for providing this was relatively short, there was nothing to suggest that the figure was an unreasonable estimate of the respondent’s costs before the English Court of Appeal or that the applicant would have been able to raise the money if given more time.316 The ECtHR examined the then practice of the Court of Appeal in relation to granting security for costs on an appeal.317 Although impecuniosity was a ground for awarding security for costs, this was subject to conditions. In exercising its discretion, the Court of Appeal would consider whether the grant of an application would amount to a denial of justice to the defendant, in particular having regard to the merits of the appeal. The Court of Appeal would have been reluctant to use its discretion to grant an order if the appeal had had a reasonable prospect of success. The Court of Appeal had considered the issue of security for costs for six days and concluded that the applicant had failed to show real and substantial grounds for his appeal, both on liability and on damages.318 In conclusion, the ECtHR could not find that the justification given by the Court of Appeal for ordering security for costs disclosed any arbitrariness.319

9.122 The former practice of the English courts in relation to the award of an order for security for costs of an appeal, which passed muster in Tolstoy, was subsequently altered.320 A court can only award security for costs against an appellant on the same grounds as it may so order against a claimant. A separate reform was that permission must be obtained to appeal. Once it has, it follows that there must be a real prospect of the appeal succeeding.321 The Court of Appeal in Nasser v United Bank of Kuwait322 held that, in order to be consistent with Tolstoy, it must be recognised that, for those with a real prospect of success, ease of access to appellate justice should be given greater priority than was previously the case.323 The policy adopted in the new rules has been to restrict the grounds on which security may be ordered, thereby easing access to an appellate court for those with a real prospect of success or some other compelling reason for an appeal.324 Impecuniosity has been abandoned as a ground for ordering security for the costs of an appeal. What remains as a ground for security for costs is foreign residence. This ground, however, has raised concerns in relation to the prohibition of discrimination.

2. The Prohibition of Discrimination

9.123 It has been seen that an order for security for costs falls within the ambit of Article 6 ECHR, in particular the right of effective access to the courts.325 Therefore Article 14 ECHR is engaged and there should be no discrimination when making an order for security for costs.326 Where security for costs is required in a case falling within the Brussels regime then the protections afforded by EU fundamental rights come into play.327 However, when it comes to EU fundamental rights, it is important to distinguish between the situation where an order is made against a person resident in another EU Member State and that where the person is not so resident. In the former situation, the English law on security for costs must comply with the prohibition against discrimination set out in Article 18 TFEU and Article 21(2) CFREU. In the latter situation, it does not have to.

(a) An order against a person resident in another EU Member State

9.124 A former English rule for security of costs provided that, on the application of the defendant, the court could award security for costs where the plaintiff is ordinarily resident out of the jurisdiction if the court thinks it ‘just’ to do so.328 The Court of Appeal in Fitzgerald v Williams329 was concerned with the award of security for costs under this rule against a person resident in another EU Member State, Ireland. Did this discriminate against such persons when compared with those resident in the UK contrary to the then Article 6 TEC330 (now Article 18(1) TFEU)? The Court applied the decision of the ECJ in Mund and Fester v Hatrex International Transport.331

9.125 In the light of that decision of the ECJ, it was accepted that the English procedural rule fell within the scope of the Treaty.332 It was also accepted that the English rule involved differential treatment since it empowered the court to make orders against plaintiffs ordinarily resident out of the jurisdiction, which it could not make against plaintiffs ordinarily resident within it.333 On its face, the English rule involved differential treatment on the basis of ordinary residence, not nationality. However, there was a close analogy with Mund and Fester, where most German judgments to be enforced outside Germany would not be against German citizens. Most plaintiffs in England ordinarily resident outside the jurisdiction would not be British nationals. This would constitute ‘covert’ (indirect) discrimination on grounds of nationality.334 As Otton LJ put it, ‘a national provision dealing with enforcement of judgments which is founded on criteria which may affect nationals of EU Member States is capable of amounting to covert discrimination on grounds of nationality’ for the purpose of what is now Article 18(1) TFEU.335 If the provision ‘operates to affect principally nationals from Member States to their disadvantage in comparison with nationals of the legislating State (even if it may affect nationals of the legislating State) it will be held to be covert discrimination’.336

9.126 Could this discrimination be justified by objective circ*mstances? The Court of Appeal referred to Mund and Fester as establishing that any automatic provision for security for costs against a person resident in another Member State would be indirect discrimination on grounds of nationality. The Court of Appeal acknowledged that the English practice was different from that in Germany.337 It contained no explicit presumption that a judgment would be more difficult to enforce abroad and the award of an order for security for costs was discretionary, not automatic. Nonetheless, an alteration of English law or practice was required in the light of the ECJ’s decision in Mund and Fester: the English court should never exercise its discretion to order security to be given by any individual plaintiff who is a national of and resident in another Member State to the Brussels system, at any rate in the absence of very cogent evidence of substantial difficulty in enforcing a judgment in another Member State.338 On the evidence, enforcement in Ireland presented no difficulty. Accordingly, the order for security for costs should not have been made against the Irish plaintiffs.

9.127 This is a very good example of a human rights concern—in this case in relation to non-discrimination contrary to the then EEC Treaty—having a major impact on an English procedural rule and its application.

(b) An order against a person resident in a non-EU Member State

9.128 There was no suggestion in Fitzgerald v Williams that the English practice required any alteration where a plaintiff was ordinarily resident in a non-EU Member State. The English rule for the security for costs has since been altered with the result that the issue arising in Fitzgerald could not now arise. Under the CPR the court may make an order for security for costs if it is satisfied that it is ‘just’ to make such an order. Certain conditions are also required. An individual claimant must be ordinarily resident outside the jurisdiction and not a person against whom a claim can be enforced under the Brussels/Lugano system.339

9.129 The Court of Appeal in Nasser v United Bank of Kuwait340 considered whether this provision was incompatible with Articles 6 and 14 ECHR. The case concerned an action on the merits brought in England by a resident of the US against the United Bank of Kuwait. The basis of jurisdiction was not mentioned in the judgment but this was presumably brought under traditional national rules of jurisdiction. The claimant was ordered to pay money into court as security for the defendant’s costs, which was done. An order for further money to be paid into court was made. The claimant sought to have this order varied or revoked.

9.130 Mance LJ paid commendable attention to the jurisprudence of the ECtHR not only specifically in relation to Article 6(1) ECHR and security for costs, but also to the more general jurisprudence in relation to Article 14 ECHR, there being no specific jurisprudence in relation to discrimination and security for costs. In particular, it was instructive to consider the jurisprudence in relation to what is now Article 18(1) TFEU in cases that fall outside the ambit of that provision.341 Although the precise phraseology of Article 14 ECHR is different from Article 18(1) TFEU, which speaks simply of nationality, it was said that the two non-discrimination provisions could not be sensibly distinguished as regards the protection that they may afford in respect of orders against foreign residents for security for costs.342 The CPR provision in question,343 with its distinction between those resident within and those resident outside Brussels/Lugano States, was regarded as raising a potential issue of discrimination.344

9.131 The Court of Appeal held that the English rule that distinguishes between residents within and outside the Brussels/Lugano system simply identifies when discretion to order costs exists. The rule could not, itself, be regarded as being unduly discriminatory.345 However, the exercise of the discretion conferred by the English rule raised different considerations. Mance LJ set out a number of principles or guidelines to be used when exercising this discretion. These have been influenced by a human rights concern to avoid discrimination. The discretion must be exercised by the courts in a manner which is not discriminatory.346 It would be discriminatory and unjustifiable if the mere fact of residence outside any Brussels/Lugano system Member State could justify the exercise of discretion to order security.347 Potential difficulties or burdens of enforcement in States not party to the Brussels/Lugano system are the rationale for the existence of the discretion, and, therefore, the discretion should be exercised in a manner that reflects this rationale.348 Residents outside the Brussels/Lugano system should not be disadvantaged in terms of access to justice compared with residents within.349 Merely because a person is not resident in England or another Brussels/Lugano system Member State does not necessarily mean that enforcement will be more difficult.350 If the discretion to order security is to be exercised it should be on objectively justified grounds relating to obstacles to or the burden of enforcement in the context of the particular claimant or country concerned.351 The prohibition of discrimination in access to justice on grounds of nationality means that impecuniosity of an individual claimant resident within the jurisdiction or in a Brussels/Lugano Member State is no longer a basis for seeking security352 and it should no longer be a ground for ordering security from those resident outside the Brussels/Lugano system. This overturns earlier practice.353 There can be no inflexible assumption that in every case there will be substantial obstacles to enforcement against a foreign defendant.354 If the discretion is to be exercised, there must be a proper basis for considering that such obstacles may exist or that enforcement may be encumbered by some extra burden, such as cost or the burden of an irrecoverable contingency fee or simply delay. The mere absence of reciprocal arrangements providing for enforcement of foreign judgments cannot in itself justify an inference that enforcement will not be possible, as the facts of the case show.355

9.132 The instant case concerned enforcement in the US. No evidence was put forward to suggest that that the defendants would, or even could, face any real obstacle or difficulty of legal principle in enforcing in the US any English judgment for costs against the defendant.356 Also there was no express suggestion that the defendants would face any extra burden in taking such enforcement action against the claimant for costs. For the Court of Appeal, ‘the risk against which the present defendants are entitled to protection is … that the steps taken to enforce any … judgment in the United States will involve an extra burden in terms of costs and delay, compared with any equivalent steps that could be taken here [in England] or any other Brussels/Lugano State’.357 Therefore, the order for security for costs should be tailored in amount to reflect this risk.

9.133 The principles in Nasser were applied by the Court of Appeal in a rather different context in Relational LLC v Hodges.358 This case concerned an English defendant to an English action for enforcement at common law of a judgment obtained against him in Illinois. The defendant sought an English order for security for the full amount of his costs from the claimant, a company incorporated in Delaware with its main place of business in Illinois. It will be recalled that in Nasser only the additional costs of having to enforce a judgment for costs abroad against a foreign claimant were considered. In Relational LLC, the defendant sought to distinguish Nasser, arguing that in the present case there was a substantial obstacle to enforcement of an English judgment for costs in that the US claimant would ask the US enforcing court to set off the amount of the judgment in its favour on the merits. This substantial obstacle would, following Nasser, justify exercising the discretion to order full costs in a way that was non-discriminatory. The Court of Appeal rejected this argument. The availability of a set off in Illinois was not regarded as an obstacle to enforcement of an English costs order.359 This brought things back to the basic concern in Nasser that the English courts should not act in a way that was discriminatory. Gloster J at first instance had rejected the application on the ground, inter alia,360 that to make an order against the US litigant requiring him to put up security, when an order could not be made under the CPR against an EU litigant with an Illinois judgment in his favour, would be discriminatory on grounds of nationality and thus contrary to Article 14 ECHR. The Court of Appeal agreed with this view.361 Although this may suggest that human rights arguments exclude any security for costs order, applying the principles in Nasser, an order for security for costs that is limited to the extra burden in terms of costs and delay in enforcing a costs order abroad may not be discriminatory.

V. The Applicable Law

9.134 It has been asserted that a private international law rule that identifies the applicable law cannot itself be considered discriminatory, even though the substantive law so identified is discriminatory.362 However, it is suggested that the position is more complicated than that and it is submitted in a later chapter that, in principle, it should be possible for a Contracting State to be responsible for a violation of the ECHR by virtue of the particular substantive law it applies under its choice of law rule.363 This difficult matter is best left to that chapter. It is certainly true that the complaint by a person who has been discriminated against is likely to be in respect of the substantive law, rather than the rule on the applicable law. Moreover, the practical problem that arises in the context of the prohibition of discrimination is when the rule on the applicable law uses criteria which differentiate between persons on a ground such as nationality or sex. Is this incompatible with the prohibition on discrimination?

9.135 We have seen that there appears to be no jurisprudence of the ECtHR dealing directly with the prohibition of discrimination in the context of jurisdiction (although there is some English case law).364 However, there is jurisprudence on non-discrimination arising in the context of the applicable law. This jurisprudence has obvious relevance when examining national rules on the applicable law, and in particular the English choice of law rules in relation to an international marriage. These choice of law rules and the Strasbourg jurisprudence on choice of law and the prohibition on discrimination will be examined in Chapters 11 and 12.365 There is no evidence of the prohibition of discrimination having any actual or potential impact on other English choice of law rules. However, there is evidence of certain EU rules on the applicable law being impacted by the prohibition on discrimination in EU law.

1. Impact on EU Rules on the Applicable Law

9.136 The Charter in general, and Article 21 in particular, can be seen to have had an impact on the terms of two recent EU Regulations concerning the applicable law, namely the Rome III Regulation, regarding the law applicable to divorce and separation, and the Succession Regulation. It should be noted that the UK has not participated in the adoption of either Regulation. Rome III is the more interesting of these Regulations because, whilst acknowledging the need to comply with Article 21 CFREU, it uses nationality as a connecting factor. We will therefore start our discussion by examining this Regulation.

(a) The Rome III Regulation

(i) The impact of Article 21 CFREU

9.137 The Rome III Regulation allows the parties to choose the law applicable to divorce and legal separation, provided that they have a special designated connection with the country from which the law emanates.366 However, this substantive law must be consonant with the fundamental rights recognised by the Treaties and the Charter.367 In the absence of a choice of law by the parties, Rome III introduces harmonised choice of law rules on the basis of a scale of successive connecting factors.368 Application of a provision of law designated by Rome III may be refused if such application is manifestly incompatible with the public policy of the forum.369 However, Recital (25) states that ‘the courts should not be able to apply the public policy exception in order to disregard a provision of the law of another State when to do so would be contrary to the Charter … and in particular Article 21 thereof, which prohibits all forms of discrimination.’370 According to Recital (30), the Rome III Regulation respects fundamental rights and observes the principles recognised by the Charter, and in particular by Article 21 thereof. Moreover, it is stated that the Regulation should be applied by the courts of the participating Member States in observance of those rights and principles.371

9.138 The Impact Assessment annexed to the original proposal to amend Brussels II bis and introduce rules concerning the applicable law372 observed in relation to harmonisation of rules on the applicable law and allowing the parties a limited possibility of choice that the impact on fundamental rights would be positive. The principle of equality and non-discrimination would be fully respected insofar as the normal rules would be of universal application, meaning that the parties could designate the law of an EU Member State or of a non-EU Member State. Moreover, the same rules would apply to all EU citizens, regardless of nationality.373

(ii) The use of nationality as a connecting factor

9.139 Rome III uses nationality as a connecting factor both in relation to choice of the applicable law and the applicable law in the absence of choice. As regards the former, the law chosen must be one with which the parties have a special connection. There are four designated alternatives for this. Two of these (habitual residence of both spouses at the time of agreement on choice of law and the law of the forum) raise no concerns in terms of the prohibition of discrimination.374 However, the third alternative refers to the State of nationality of either spouse at the time the agreement on applicable law is concluded.375 The fact that this alternative specifies the nationality of just one spouse raises at least a question mark in relation to discrimination on the ground of nationality. Is the spouse (A), who is a national of a State other than the one whose law is chosen by the parties, discriminated against? Both spouses are given the opportunity to agree on the choice of the applicable law so there is no difference in treatment in this regard. It might be argued that there is a difference in the treatment of the spouses because one gets the law of his or her nationality applied, whilst the other does not. However, spouse A has agreed to the law of the other spouse’s nationality being applied.376 This should provide objective and reasonable justification for the difference in treatment.377

9.140 The remaining alternative designated connection refers to the spouses’ last habitual residence, insofar as one of them still resides there at the time the agreement on the applicable law is concluded.378 The spouse who still resides in the couple’s last habitual residence has the law of his or her residence applied,379 whilst the other spouse does not. Once again, any differential treatment on the ground of residence can be justified on the basis that it was agreed to by both parties.

9.141 Nationality is also used as a connecting factor under the choice of law rules that apply in the absence of choice by the parties. However, this connecting factor is in terms of the common nationality of both spouses.380 It therefore does not involve differential treatment of spouses who have different nationalities.381 Furthermore, the law of the common nationality is only applied if the parties do not have a common jurisdiction of habitual residence.382 The designation of the law of the parties’ shared nationality may also be justified in terms of Article 22 CFREU and the interest in preserving cultural diversity.383

(b) The Succession Regulation

(i) The impact of Article 21 CFREU

9.142 The Succession Regulation allows citizens to organise their succession in advance by choosing the law applicable to their succession.384 This is limited to the law of their State of nationality. There is no additional requirement, as there is under Rome III, that the substantive law must be consonant with the fundamental rights recognised by the Treaties and the Charter. Like Rome III, the Succession Regulation provides that the application of a provision of law of any State specified by the Regulation may be refused if such application is manifestly incompatible with the public policy (ordre public) of the forum.385 Recital (58) states that ‘the courts … should not be able to apply the public policy exception in order to set aside the law of another State … when doing so would be contrary to the Charter … and in particular Article 21 thereof, which prohibits all forms of discrimination.’ According to Recital (81), the Succession Regulation respects fundamental rights and observes the principles recognised in the Charter, but, unlike Rome III, this general fundamental rights provision does not specifically mention Article 21 CFREU. Recital (81) goes on to provide that the Regulation must be applied by the courts and other competent authorities of the Member States in observance of those rights and principles.386

9.143 The Succession Regulation was seen as having positive benefits in terms of fundamental rights. These included the right to not to be discriminated against. For example, it was noted that for same sex couples the rules on the applicable law would improve the possibility of one partner disposing of property to the benefit of the other, regardless of where they have their habitual residence.387 Under the law prior to the introduction of the Succession Regulation, heirs living in the Member State where certain property of the deceased was situated might have advantages compared to heirs living abroad.388 In particular, discrimination on the basis of nationality of the different heirs was possible as jurisdiction in succession matters under the national law of many Member States was based on the nationality of the deceased or the heir. This failed to respect Articles 20 and 21 CFREU. Consideration of other fundamental rights supported the proposed rules. Thus the divergent rules on international succession were seen as preventing the full exercise of private property law rights,389 which form an integral part of the fundamental rights which the ECJ ensures are respected.390 In particular, the right of heirs to inherit under a will might not be operative with regard to property in another Member State.391 There was also discussion of the effect of the adoption of the Succession Regulation on the rights of the child under Article 24 CFREU.392

9.144 Nationality is used as a connecting factor under the choice of law rules in the Succession Regulation. This is the nationality of just one person, the one who subsequently dies. This use of nationality is by choice of that person and not imposed. And the ability to choose the law of nationality applies equally to all persons. Therefore, there is no differential treatment. If the outcome is one that is less favourable, then that is the fault of the substantive national law of succession, not of the choice of law rule.

VI. Conclusion

9.145 The prohibition of discrimination has had a clear impact on the development of the law on jurisdiction under the two major EU instruments in private international law, with specific provisions designed to prevent discrimination. However, when it comes to what the impact of this prohibition should be on jurisdiction, the position is both complex and uncertain. The ECtHR has accommodated differential treatment on the basis of a private international law connecting factor in Johnston and Ammdjadi, as well as traditional private international law rationales such as reciprocity in Granos Organicos, but there have been so few cases that it is difficult to discern any general approach. The ECJ has not been so timid when criticising national private international law rules that discriminate on grounds of nationality. However, this is hardly surprising given the importance of EU citizenship and free movement of persons within the EU, and there has been no judicial consideration of the compatibility of EU private international law rules with the Charter or Article 18 TFEU.

9.146 The provisions under the Recast Brussels I Regulation dealing with third State defendants involve differences in treatment as between defendants and as between plaintiffs. However, it has been suggested that, in the light of the sparse Strasbourg jurisprudence, this quite possibly does not constitute differential treatment under the ECHR. Moreover, it can probably be objectively justified and is therefore not incompatible with Article 14 ECHR and Article 1 Protocol 12 ECHR. Whilst the operation of Article 6 Brussels I Recast is unlikely to be problematic in terms of Article 14 ECHR, it could be argued that there is indirect discrimination on grounds of nationality contrary to Article 21(2) CFREU and Article 18 TFEU between plaintiffs domiciled within the EU as the difference of treatment on the basis of domicile principally affects the nationals of each Member State. When it came to reform of the Brussels I Regulation, the risk of incompatibility was not seen as being great and, from a private international law perspective, the situation where there is a third State defendant is hard to deal with in a way acceptable to stakeholders.

9.147 By contrast, there is a stronger argument that Articles 6 and 7 Brussels II bis violate Article 14 ECHR (taken with Article 6). These provisions draw explicit distinctions between EU nationals and non-EU nationals residing in third countries and subject the latter to prejudicial treatment against which the former are specifically protected.

9.148 The use of nationality of the plaintiff as a basis of jurisdiction under certain national systems is most problematic of all, involving a real risk of incompatibility with Article 14 ECHR. This should be addressed in those States which act in this unjustifiable way. The English courts have shown an awareness of these risks, and the Court of Appeal has responded appropriately to concerns regarding the operation of rules relating to State immunity.

9.149 In contrast, both the EU and national law on recognition and enforcement of foreign judgments and decrees393 appear to have not been influenced by the prohibition of discrimination or to have raised concerns in this regard.394

9.150 The prohibition of discrimination has had a major impact on the English law on security for costs in private international law cases, with the courts altering the English practice on several occasions to comply with the general principles regarding non-discrimination established in the jurisprudence of the ECtHR, as well as what is now Article 18(1) TFEU.

9.151 Article 21 CFREU can be seen to have had an impact on the development of EU rules on the applicable law. It has been seen that harmonised rules on the applicable law in relation to divorce/legal separation and succession were regarded by the Commission as having positive benefits in terms of the prohibition of discrimination under Article 21 CFREU. Moreover, Rome III and the Succession Regulation both contain an express instruction in their Recitals that application of the public policy exception is limited by the need to respect fundamental rights, and, in particular Article 21 CFREU. There is obvious potential for the prohibition of discrimination to have a substantial impact on use of the public policy exception. Time will tell when and how the ECJ and national courts will carry out this instruction.