February 6, 2015
State Immunity and EU law intervention in the Court of Appeal
Arfan Khan, a leading Barrister, successfully led for the intervener, 4A law, in a landmark Court of Appeal case on State Immunity. The case is known as the Benkarbouch v Libya and Sudan, 4A law & others intervening [2015] EWCA Civ 33. It is reported in the press: see http://www.bbc.co.uk/news/uk-31149298. The full judgement is available at http://www.bailii.org/ew/cases/EWCA/Civ/2015/33.html
The intervention raised novel submissions adverse to the position of the UK government, the State of Libya, and Sudan. The intervention was opposed by the Secretary of State for the Foreign and Commonwealth office. Ellias LJ, and the Master of the Rolls, granted 4A law permission to intervene. As a result, 4A law became a party to the appeal, and received credit for assisting the Court in arriving at its decision.
The intervention relied on extensive state practice, including authorities not previously referred to in the proceedings, including Mohamdia v People’s Democratic Republic of Algeria [2013] ICR 1, as applied by the Irish Employment Appeal Tribunal, Case C-555/07 Kucukdeveci v Swedex [2010] IRLR 346, and Curra v. Bundesrepublic Deutschland, 12 July 2012 (Third Chamber).
Amongst other arguments, the intervention in summary submitted that the State Immunity Act 1974, s 4 (2) (b) and 16 1 (a), could not be read down, and should be set aside in order to give effect to directly enforceable rights under EU law. The intervention submitted that there was no rule of customary international law preventing low level employment claims, falling with the material scope of EU law, from being brought, and that the European Convention on State Immunity (ECSI) did not assist. The intervention contended that the present case should not be confused with the decision of Lord Mance in R (Chester) v Secretary of State for Justice [2013] UKSC 63, [2014] AC 271, as the disapplication in the present case was in accordance with EU law.
The Court of Appeal (Lord Dyson, Master of the Rolls, Lady Justice Arden, and Lord Justice Lloyd Jones), held that “the court is required, pursuant to section 2(1) European Communities Act 1972, to disapply sections 4(2)(b) and 16(1)(a) SIA, in their application to those parts of the claims which fall within the scope of EU law”, and granted a declaration of incompatibility.
Lady Justice Arden distinguished the decision of Lord Mance in Chester holding that “Unlike the position in Chester, the scope of the disapplication in this case is clear”. The right to an effective remedy under Article 47 was a general principle of EU law, with the result that Article 47 had horizontal direct effect.
The Court held that contracting states are not required to apply the rules set out in ECSI to matters concerning privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts. The Court held that the authorities were inconsistent with view that international law requires immunity in all employment claims by the service staff of a mission.
Click here for the judgement:
