Are employment tribunal fees making it practically impossible or excessively difficult to exercise rights under European Union law? It is a point worth considering.
In general, access to national courts is governed by national law, under the principle of national procedural autonomy.
However, the European Court of Justice (the court) does intervene in cases where access to national courts is severely limited or restricted. This is because the national courts have an important role in enforcing European Union (EU) law, and the court wants to make sure that individuals, as well as companies, are able to uphold their rights under EU law.
Accordingly, in Case C-432/05 Unibet, the court ruled that it will intervene with national procedural autonomy where there are barriers for individuals to access the national courts.
More precisely, the national procedural rules must not render the exercise of rights conferred by EU law ‘practically impossible or excessively difficult’ (Unibet, paragraphs 43, 53).
The court has been particularly keen to intervene where these barriers are absolute. The court has rejected short and strict limitation periods, which prevent the access of individuals to national courts (Case C-208/90 Emmott).
It has also intervened where national procedural rules and exceptions have prevented the individual from bringing proceedings or making the case at the national courts (such as in the Case 222/84 Johnston).
However, it is not only absolute barriers that catch the court’s eye. In Unibet, the court stated that if national procedural laws allowed only an indirect access to courts, where individuals would not be able to bring the proceedings to the courts themselves, this would be in contravention of the principle of effective protection of individual.
In concrete terms, if the only way for individuals to question the validity of national rules against Union law would be to first breach the national law and then wait for the state to bring a prosecution, this kind of indirect access would not allow for adequate enforcement of Union rights. Therefore, the court will also intervene in cases where an individual faces a high degree of difficulty in getting access to the national courts.
Accordingly, even though high tribunal fees do not create an absolute barrier on access to courts, an argument can be made that these high fees, in particular where access to legal aid is restricted, make it excessively difficult, if not practically impossible, for an individual to exercise their EU rights.
While the principles of protection of individual rights and access to justice apply to every national court or tribunal which is responsible for enforcing EU law, they are even more important with respect to access to employment tribunals.
Employment tribunals hear cases that often have a direct link with the enforcement of EU non-discrimination directives. The court considers the principle of prohibition of discrimination a fundamental EU law right and has been particularly vigilant in overseeing that the rights under these Directives are effectively protected.
There are several cases concerning the limits of national procedural autonomy where the court has deemed the prescribed national remedies for breaches of EU directives inadequate or ineffective, and demanded more robust remedies (e.g. Case 14/83 von Colson, Emmott, Johnston).
Therefore, it is not a stretch to think that the court would be similarly concerned where the access is severely restricted to the national courts on grounds of individuals not being able to pay the tribunal fees.
There are cases already pending at the employment tribunals and appeal courts, and it will be interesting to see what the result will be. It should also be noted that in a situation where a national court or tribunal thinks that the fees should be tested in front of the court, it has the option to ask for a preliminary ruling.
The court is not only bound to take a notice of its own decision on Unibet, but it will also consider the relevant case law from the European Court of Human Rights, under which high fees can be in contravention with the principle of right to a fair trial (Weissman and Others v Romania, and Podpielski v Poland).
Such a ruling could strengthen the Union principle of access to justice, and serve as a reminder for member states that EU rights are for the benefit of everyone, not just the wealthy.
Helena Raulus is the EU internal market adviser at the Law Society’s Brussels office