What are the steps necessary to take an ECJ case, and how much is it likely to cost?

hatrickpatrick

We have a discussion on AH about minimum alcohol pricing and the fact that our government seems to be intending to introduce the measure despite the lack of a ruling in the Scottish case, which many have said seems likely to succeed in blocking the laws as illegal under EU competition rules.

I am suggesting a Kickstarter campaign to crowd-fund an ECJ case over the Irish proposal, as AFAIK the ECJ can't step in unless someone actually takes a case, and all of the drinks companies here are in favour (of course :mad:) which leaves us with a scenario of some Joe Soap having to do it.

What I'm basically wondering is, how far does a case have to get in the Irish courts before being referred to the ECJ, and what is the likely cost both of that and the eventual ECJ case, factoring in (a) legal costs for our case and subsequent appeals, and (b) the fact that if we lose, we'll have to cover the state's tab?

None of this is asking for legal advice, just info on procedure and price

I assume the high court can refer to the ECJ, or would it have to go higher? Or could we bypass the Irish courts altogether and go straight to the ECJ as citizens of the EU?

Robbo

hatrickpatrick wrote: »

I assume the high court can refer to the ECJ, or would it have to go higher? Or could we bypass the Irish courts altogether and go straight to the ECJ as citizens of the EU?

Theoretically, even pissant tribunals such as the PRTB can refer matters to the CJEU.

MarkAnthony

All you need is a question over the application of EU law. The problem you have is that there is a ground for derogation on public policy/health/security grounds.

Any court can refer the case if needed.

Best of luck with your case.

hatrickpatrick

MarkAnthony wrote: »

All you need is a question over the application of EU law. The problem you have is that there is a ground for derogation on public policy/health/security grounds.

Agreed, but the SWA seems confident of winning the case and since it's not due for a ruling until next year, at the very least we can delay it being brought in until we've all perfected the art of home brewing

Any court can refer the case if needed.

Excellent! So in Ireland, can one go straight to the high court with a case like this, or do you go through district -> circuit -> high court?

Best of luck with your case.

Cheers, it's an idea in its infancy but sure we'll see!

MarkAnthony

If primary reference is needed it comes from which ever court is the appropriate forum for your case. As noted almost anything serving a judicial function can refer a case to the ECJ. So you'd need to start in the court here which has jurisdiction. I suspect that would be the High court.

hatrickpatrick

MarkAnthony wrote: »

If primary reference is needed it comes from which ever court is the appropriate forum for your case. As noted almost anything serving a judicial function can refer a case to the ECJ. So you'd need to start in the court here which has jurisdiction. I suspect that would be the High court.

It makes sense really, a law of the land isn't going to be reviewed at district or circuit court level. In my somewhat inexperienced knowledge of the Irish judicial system, I was under the impression that every case had to start at the lowest court and be referred upwards until it reached the court in which it was relevant - bit like how sometimes assault cases are initially brought to the district court and the judge says "This is too serious for me to accept jurisdiction, so I'll refer it up to the circuit courts".

Little CuChulainn

I don't think Kickstarter allow campaigns for legal fees. Might just be limited to criminal cases.

MarkAnthony

Civil and criminal jurisdictions are different. It's very possible of the District court to find a law has questionable compliance with EU law and therefore has to make a reference to the CJEU.

In criminal law the DC is a clearing house for cases. Oddly enough until recently a circuit court judge was seen as competent to try a rape case but not a civil case in excess of around 40K, that's changed now and they deal with higher amounts.

MarkAnthony

Another issue you're going to have here is your Locus standi to bring a case. I'm open to correction but you won't be able to challenge the law on the basis of anyone other than yourself.v Therefore you'd be seeking a very small amount of damages and hoping the decision would force a change in the law. The CJEU doesn't review the law in Ireland per se, simply awards damages for the breach of your rights under EU law, in this case, presumably, free movement of goods.

partyguinness

From the outset, you are essentially starting a Judicial Review (JR) and this is to the High Court and then hope they refer the matter to Europe if the Court needs clarification.

You must exhaust the national court system first before having any chance of playing in Europe. So no, you cannot go straight to Europe.

Cost- substantial (tens if not hundreds of thousands of pounds)
Timescale- substantial (years)- not this decade

Good luck...;)

hatrickpatrick

MarkAnthony wrote: »

Another issue you're going to have here is your Locus standi to bring a case. I'm open to correction but you won't be able to challenge the law on the basis of anyone other than yourself.v Therefore you'd be seeking a very small amount of damages and hoping the decision would force a change in the law. The CJEU doesn't review the law in Ireland per se, simply awards damages for the breach of your rights under EU law, in this case, presumably, free movement of goods.

Well the ECJ is reviewing the law in Scotland to see whether or not it's legal. Perhaps we're confusing the ECJ with the ECHR?

partyguinness wrote: »

From the outset, you are essentially starting a Judicial Review (JR) and this is to the High Court and then hope they refer the matter to Europe if the Court needs clarification.

You must exhaust the national court system first before having any chance of playing in Europe. So no, you cannot go straight to Europe.

Cost- substantial (tens if not hundreds of thousands of pounds)
Timescale- substantial (years)- not this decade

Good luck...;)

Incredibly appropriate username
The cost is what we want to calculate before we start trying to raise funds. The timescale is perfect - while the Scottish case is ongoing, the law cannot be implemented. Same probably applies here.

partyguinness

hatrickpatrick wrote: »

Well the ECJ is reviewing the law in Scotland to see whether or not it's legal. Perhaps we're confusing the ECJ with the ECHR?



Incredibly appropriate username
The cost is what we want to calculate before we start trying to raise funds. The timescale is perfect - while the Scottish case is ongoing, the law cannot be implemented. Same probably applies here.

Just do what the Ireland is notorious for doing anyway- wait for someone else to try it first and see what happens.

Robbo

A couple of further observations:

No minimum pricing legislation has been passed in this country. In fact the heads of the Bill haven't been approved yet so it's at a very early legislative stage. It's a bit of a stretch to raise objections to legislation that doesn't exist (even in outline form) yet.

The SWA case isn't rooted in competition law, it's an internal market matter and whether the minimum pricing model (as adopted by the Scotlanders) is a Quantative Restriction or a Measure Equivalent to the Quantitive Restriction.

As previously noted, there are a number of reasons why a QR or MEQR may be justified. One of the stronger ones is on public health grounds. Then there's issues of proportionality to consider. If the SWA are going around telling people they're confident of victory, they're either bluffing or deluded. There's arguments to be made on both sides and the outcome is far from certain either way.

The outcome of the SWA case may well be that they succeed. Even so, there may be a formulation of a minimum pricing which *doesn't* offend Article 34 TFEU. It's entirely likely that by the time any proposed legislation is finalised here, we'll know the result and can act accordingly.

You may well find some well meaning lushes who may take the matter on pro-bono provided a booze cruise to one of the continents finest hypermarches is covered as part of the campaign.