European Court of Justice

P. v. S. and Cornwall County Council, Case C-13/94 (30 April 1996)

1. Facts:

1. Facts:

• P worked for the Cornwall County Council in the UK

• She announced in April 1992 that she was to transition to being female. She
was dismissed in September 1992.

2. Procedural Posture

• The local employment board held that the factual reason for P’s dismissal was
her transition to female

• It was also held that the UK Sex Discrimination Act did not apply to these
circumstances, in that “within the provisions of the domestic legislation
woman means a female and man means a male.”

• The Tribunal asked the ECJ for an advisory opinion on the EEC Equal
Treatment Directive

3. Issue: Whether the EEC Equal Treatment Directive 76/207/EEC prohibits work-place
discrimination against transexuals

• Council: P was dismissed for reasons of redundancy, not discrimination

• UK: ”issues relating to transsexuality are matters of “principle and policy”

which “cannot properly be addressed within the context of a Directive
designed to secure equal treatment between men and women.”

• European Commission: “the purposes of the European Convention of Human

Rights and in light of the case law of the European Court of Human Rights, it
appears to be accepted that whilst a change of sex by a transsexual is to be
recognised, some latitude is afforded the Member States as to the
circumstances in which they decide to recognise that change.”

4. Holding:

• “The Directive is the expression of the principle of equality, which is one of

the fundamental principles of Community law. In view of its purpose and the
fundamental nature of the rights which it seeks to safeguard, the scope of the
 Directive also applies to discrimination based essentially, if not exclusively,
on the sex of the person concerned. Where such discrimination arises, as in the
present case, from the gender reassignment of the person concerned, he or she
is treated unfavourably by comparison with persons of the sex to which he or
she was deemed to belong before undergoing gender reassignment. To tolerate
such discrimination would be tantamount, as regards such a person, to a failure
to respect the dignity and freedom to which he or she is entitled, and which the
Court has a duty to safeguard. Therefore, dismissal of a transsexual for a
reason related to a gender reassignment must be regarded as contrary to
Article 5(1) of the Directive.”

5. Directive 2000/78 on a General Framework for Equal Treatment in Employment and

Occupation would clearly have covered this case.

• Society for the Protection of the Unborn Child Ireland Ltd. v. Steven
Grogan, Case C-159/90 (4 October 1991)
1. Facts:

• The Irish Constitution protects the rights of a person from the moment of
conception (Art. 40 (3) (3))

• Grogan and others distributed information in Ireland about abortion clinics in

the UK (how to contact them and where they were)

• A criminal case was brought against them for violating the rights of unborn
children that were inevitably terminated in the UK as a result of their
information

• In the Irish High Court, the question raised was whether the European
Economic Community Treaty (Treaty of Rome), Art. 59 prohibited restrictions
on the distribution of information

2. Procedural Posture

• The Irish High Court requested the ECJ to advise on the applicability of
Article 59 of the Treaty.

3. Issue: Whether the EEC Treaty protects information about services distributed by
those not providing the services.
 4. Holding:

“26. The information to which the national court' s questions refer is not distributed on behalf
of an economic operator established in another Member State. On the contrary, the
information constitutes a manifestation of freedom of expression and of the freedom to
impart and receive information which is independent of the economic activity carried on by
clinics established in another Member State.

27. It follows that, in any event, a prohibition on the distribution of information in

circumstances such as those which are the subject of the main proceedings cannot be
regarded as a restriction within the meaning of Article 59 of the Treaty.”

1. This decision pre-dates the Charter of Fundamental Rights of the European Union

• The decision would likely have been different if the Charter was in effect at
the time of this case: Art. 11 (freedom of expression)

2. Follow-up in the ECtHR: Open Door Counselling and Dublin Well Woman v. Ireland:

• Denial of freedom of expression, etc.

• Kadi and Al Barakaat International Foundation v Council

and Commission, Cases C-402/05 P and C-415/05 P (3 Sept.
2008)
1. Facts

• Council Regulation (EC) No 467/2001 (6 March 6 2001) and Council

Regulation (EC) No 881/2002 (27 May 2002) gave effect to UNSC
Resolutions establishing the Counter-terrorism Committee and a list of
individuals whose assets were to be frozen and travel bans imposed for
assisting in financing Al Qaeda.

• The EC Regulations included an appended list which named Kadi and Al

Barakaat, freezing their assets

• Plaintiffs brought the case to the Court of First Instance which ruled they were
without jurisdiction to evaluate effectuating regulations of the UNSC by
virture of it being the highest pinnacle of international law (only to be
overruled by jus cogens)

• Plaintiffs appealed to the ECJ

2. Holding
 • The ECJ has jurisdiction to review all EC acts in comparison to fundamental
rights (even acts that effectuate an UNSC resolution, although the lawfulness
of the UNSC action will not be examined).

• The rights to be heard and to effective judicial review were patently not
respected.

• The regulation provided no procedure for communicating the evidence

justifying the inclusion of Appellants on the list.

• The Council of the EU never informed the Appellants of the evidence against
them that justified including them on the list.

• Thus, the Appellants were not able to defend their rights before EC courts,
denying the right to an effective legal remedy.

• Relevant rights: Art. 47 of the Charter of Fundamental Rights of the European

Union (effective remedy)

• Everyone whose rights and freedoms guaranteed by the law of the

Union are violated has the right to an

effective remedy before a tribunal in compliance with the conditions laid down in this
Article.

• Everyone is entitled to a fair and public hearing within a reasonable

time by an independent and

impartial tribunal previously established by law.

European Court of Human Rights Exhaustion of Domestic

Remedies
Isayeva, Yusupova, Bazayava v. Russia, (24 February 2005):

1. Facts:

• There was an attack on a refugee convoy which killed or injured many people,
including the applicants.

• It was claimed that the attack was carried out by the Russian military.
 • All applicants had lodged criminal complaints, but no investigation or charged
were made (an investigation was subsequently begun years later)

• The applicants could not bring civil claims because they did not know the
names of the potential defendants.

• One applicant, Mr. Khashiyev, did bring a civil action. While the court was
unable to carry out an investigation, it made an award of financial
compensation ”on the basis of common knowledge of the military superiority
of the Russian federal forces in the district in question at the relevant time and
the State’s general liability for the actions by the military.” (para. 148)

2. Holding

• Despite the one financial award, that case confirmed that no civil action was
capable without the benefit of conclusions of a criminal investigation (identify
perpetrators and conclude responsibility).

• An award of damages without facts is an illusory remedy.

• In the facts of this case, there were no functional law enforcement bodies in
Chechnya at the time. These were special circumstances that effected the
necessity of exhaustion.

• Case admissible