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MR JUSTICE GIBBS: The Oxfordshire County Council appeals against a decision of the Special Educational Needs Tribunal, "SENT", dated 26th June 2002. SENT decided that a child, C, now aged 14, should be placed at a school called Prior's Court as a boarding pupil, as his parents, Mr and Mrs M, had requested, but contrary to the provisions set out in the appellant's statement of special educational needs in relation to C. The appellant had contended that C should continue to be placed at Bishopswood School, a day school which C had been attending, and which was run by the appellant as the local education authority. Mr and Mrs M, as the first respondents, resist this appeal. SENT, the second respondent, does not appear.
The facts in brief are that C is a boy with autism and severe learning difficulties. He has had a statement of special educational needs since August 1994. He displays what is called "the classic triad of autistic impairments". He has poor, or no, speech and finds all communication very difficult. His relations with adults and children are severely impaired, and his behaviour is repetitive, rigid and, at times, aggressive.
As already mentioned, he attends Bishopswood School, which is a maintained special school run by the appellant as the local education authority, and it caters for pupils aged between 2 and 16 with a range of special needs, which include severe learning difficulties, profound and multiple learning difficulties, and pupils at the vulnerable end of the range of moderate learning difficulties. C has enjoyed support from the appellant's social services department in the form of home visits from support workers, and also has had day visits and overnight stays at the Chiltern Resource Centre. That is a centre run by the charity Barnardos and part-funded by the social services department.
C had been attending that centre for some eight years. It was, however, under threat of closure due to budgetary constraints affecting the appellant. The appellant's proposed provision in the event of a closure of Chiltern was to provide respite care at St Nicholas House. This institution currently caters for 15 children upon a rotating basis. It is an institution which provides care, but it is agreed between the parties that it does not provide any educational facilities. The proposal of the first respondents, namely Prior's Court School, is an independent school which was opened in 1999 for pupils with a diagnosis of autism in the age range of 5 to 16.
The history of the proceedings before SENT may be summarised as follows. The disputed provisions in relation to C were set out in a statement of special educational needs dated 24th January 2001. The statement essentially provided for C to continue to be educated at Bishopswood School, with supplementary educational provision. Under the heading of "Non-educational needs and provision" respite care was to be provided at Chiltern. Mr and Mrs M appealed against the content of parts 2, 3 and 4 of the statement, pursuant to section 326 of the Education Act 1996.
On 1st May 2002 the matter came before SENT. When it considered the evidence available to it on that date, the tribunal concluded that it could not continue with the hearing and reach a determination on the basis of the existing evidence. In explaining that conclusion the tribunal said as follows:
"In summary, the parents' case is that C needs specialised education with other autistic children in a residential setting, receiving structured teaching and related support throughout the waking day. Mr and Mrs M did not consider that C's current school - Bishopswood Special School which is maintained by the LEA - can provide what C needs, mainly because the school day ends about 3.15pm and C needs a specialised and structured curriculum outside those hours.
"The LEA's response was that Bishopswood School is catering adequately for C's needs now and he is making progress. It was accepted by the LEA that C needs a structured programme after school hours, and this was offered for him in the form of respite care from the county's social services department. C has been receiving such support until now at Chilterns Resource Centre, but in the letter we admitted as late evidence it was made clear that, because of budgetary constraints, the centre was scheduled for closure. No date has been set for this, but it will probably not be available to C for much longer.
"A place had been offered in August 2000 for C by the county's social services department at St Nicholas House in Oxford. This is a residential unit with four long-term places - all of which we were told are currently full - and four other places, where children can stay on a weekly or other basis as appropriate.
"The LEA's witnesses, namely C's head teacher Ms Northfield and the LEA's educational psychologist Mrs Meyers, could not give us much detail about St Nicholas House, either as regards staffing programmes for the children or as to a whether a place was currently available there for C.
"We therefore reluctantly concluded that we were unable to make an informed decision on the information we had before us. We accordingly adjourned the hearing for such information to be obtained."
The tribunal gave directions which included the obtaining of further information. This included information as to whether a place for C would currently, or in the very near future, be available at St Nicholas House, and if not, what other alternatives there might be; as to St Nicholas House, full details of the provision on offer, the staffing and expertise, whether specific programmes are designed for the children, and if so, by whom. If St Nicholas was not available, similar information about any other appropriate respite care unit, and costings, whether at St Nicholas House or elsewhere. The tribunal sought confirmation that the parents' educational psychologist, namely Mr Reid, would be afforded full facilities to visit and inspect St Nicholas House, or any alternative, as soon as possible so that he could report in writing to the tribunal office before the next hearing. The tribunal added that they appreciated that Ms Rodway, of the appellant, did not have the power to guarantee delivery of any of the above information, but asked her to do her best nevertheless to provide it. Ms Rodway is the education officer with the appellant, who was responsible for C's educational choices. She was present at the hearing on 1st May, as she was at the concluding day's hearing on 10th June 2002.
Before the first hearing, SENT had been provided with, and had watched, a video recording illustrating C's behaviour whilst at home. Ms Rodway was not actually a witness at either hearing. The procedural rules, it should be said, restrict the number of witnesses normally allowed. But in a statement for the purposes of this appeal, dated 15th July 2002, having recited the fact the tribunal had seen the video, Ms Rodway continued as follows:
"Quite early on during the hearing on 1st May, the Chairman commented about the difficulties faced by the Ms, and in particular Mrs M. He said, looking or gesturing towards Mrs M across the table, "Look at Mum (he may have said 'mother'), she's exhausted, she needs help (he may have said 'help of some sort'). These may not have been his exact words, but they were very much along those lines.
"I would not normally have attached much significance to these words, but the course of the hearing made them quite significant.
"It became plain during the course of the day that the SENT were particularly concerned about the level of social services provision that could be made for C and his family and in particular whether the Council could offer a residential facility for him. Our counsel submitted that this was not relevant to the question of what educational provision should be made for C, but said that the Council would try to provide that information as the SENT wanted it."
As to the adjournment, Mr Friel, on behalf of the first respondents, says that they were upset that the appellant should have been given a further opportunity to put its house in order, but did not actively resist the adjournment despite the worry and distress that it brought to them. Mr Oldham, on behalf of the appellant, from a different perspective submits that the reasons for the adjournment and the circumstances under which it was directed demonstrate an error of law into which the tribunal was allowing itself to fall. I shall return later to that issue.
Following the adjournment, the requested information about St Nicholas House and other evidence relevant to this and other aspects of the case were produced without objection to SENT, and were taken into consideration by the tribunal at the adjourned hearing. I do not think it would assist to set out all comprehensively all the material which SENT eventually had before it, but it included oral evidence from Mr Heald, described as a director of children's services, and temporarily in charge of Prior's Court School pending the arrival of a new head teacher. Ms Northfield, the head of Bishopswood School, gave evidence. The tribunal also had the benefit of written and/or oral evidence from Mr Reid, the educational psychologist instructed by the first respondents, and Mrs Meyers, the appellant's educational psychologist. Mr Hassall, a consultant clinical psychologist with the Oxfordshire Learning Disabilities NHS Trust, provided a written report which had been obtained by the appellant's social services department, and which was before the tribunal.
As regards the statement of special educational needs itself, a measure of agreement had been reached between the appellant and the first respondents as to changes to parts 2 and 3 of the statement. That still left significant issues between the parties, some of which are relevant to this appeal. In particular there were two paragraphs of part 3 of the statement under the heading "Educational provision to meet needs and objectives", which the first respondents asked the tribunal to alter by substituting their own suggested wording. Two paragraphs in particular need to be mentioned. The original wording of paragraph 2 read as follows:
"C needs adult oversight all the time he is in school, both to ensure his attention but also for health and safety reasons. Currently, C has a 1:2 ratio. C's autistic behaviour needs deliberate management. Outside consultants, such as the Advisory Headteacher for Autism need to be involved. There needs to be a common approach to his behaviour management in school. Such topics as C's attachment behaviour, his obsessive behaviour and his repetitive behaviour should be managed in a consistent and negotiated way."
The alteration in wording proposed by the first respondents read as follows:
"C needs adult oversight all the time both to ensure his attention but also for health and safety reasons. Teacher pupil ratio of one teacher to six pupils plus a high level of classroom assistance support to ensure delivery of individual and small group programmes on a daily basis. All staff to have significant training and expertise in meeting the needs of children with autism."
The original paragraph 4 read:
"There should be an explicit behaviour management programme, which needs to address the following issues:-
Reducing C's anxiety. Deciding on the level of assertiveness that would be needed to bring C's behaviour under control.
Describing rewards which should be made explicit and applied rigorously.
Deciding on sanctions which again should be systematic and applied rigorously."
The new wording for that paragraph proposed by the first respondents was:
"All programmes in connection with C's self-help and independent skills, communication, amelioration of his aggressive challenging behaviours and obsessional behaviours, socialisation, imaginative and imitative play and cognitive development to be delivered throughout his waking day within a consistent and structured environment."
In referring to the evidence it had before it, SENT mentioned the following matters, which are of significance to this appeal. It mentioned that the tribunal had heard from Mrs Ainsworth, the service manager with the social services department, to the effect that there was currently no place available at St Nicholas house. She had said that there was one child on the waiting list. The social services department did have some family-based respite care places, but Mr M said that they had been on the waiting list for family-based respite for six years with no such offer. The tribunal continued:
"Summarising the reports about St Nicholas House, the SSD report described a caring environment where activities were available to the children in residence. There were extensive grounds where pupils could play, but always under supervision. Mr Reid's critique was to the effect that, whilst he accepted that St Nicholas House was a caring environment, it did not offer the structured 24 hour programme which he said was currently necessary for C."
Mr Reid being an educational psychologist, it is clear that by "structured 24 hour programme" he meant an educational programme. The tribunal continued:
"Mr and Mrs M's concerns about St Nicholas House included the fact that there were constant staff shortages, there would be a large turnover of children."
The tribunal then went on to refer to thier other concerns, the most important of which was:
"The fact that he would be cared for at school, at St Nicholas House and by other staff from SSD, all with the necessary transport in between involved; this would not represent the continuity or education which C currently needs."
It is to be noted that the evidence of Ms Northfield, Mr and Mrs M, and Mr Reid all dealt with education outside school hours, and the ability or inability of St Nicholas House to provide it. However, having summarised those matters, SENT then referred to issues relating to the social services department and its budget, upon which, again, Mr Oldham relies in this appeal:
"In the late evidence just referred to, we read that the SSD's budget is under pressure; cuts of 14% have to be found and provision for children is one of the target areas. Mrs Ainsworth could not give a date when such cuts will be implemented, or the form they will take."
The tribunal then went on to set out relative costings. I need not recite these in detail. It suffices to say that there were included in the comparative calculations for C continuing at Bishopswood as against going to Prior's Court the cost of the social services department support under the former option.
The inclusion of the social services department costing calculation is said by Mr Oldham either to be an example of the tribunal misdirecting itself by the inclusion in its considerations of an immaterial fact; alternatively, he says that its inclusion is at least an indication that the tribunal's approach to the case was wrong in law.
I have referred to Ms Northfield as having given evidence about C's education. In a letter of May 2000 Ms Northfield had said that whilst her school, Bishopswood, could cater for C's special needs during school hours, this would not enable him to learn enough independent skills or modify his behaviour sufficiently to enable his continued involvement with his family. He required education outside the normal school day, and Ms Northfield and the school supported the parents' application for residential provision. In oral evidence at the hearing Ms Northfield had explained that this would be true of most autistic pupils; that is to say, education outside the normal day would be desirable for them. She said that she still thought that C would benefit from education outside school hours, and she informed the tribunal that C was broadly at the level of attainment of a four year old at the present time. At the time of the tribunal hearing C was 13 years old.
Finally, with regard to SENT's decision, I need to refer to the crucial section, "Tribunal's conclusion with reasons". Amongst the matters set out by the tribunal were:
"Part 3
• We agreed to replace the paragraph about adult oversight for C with the wording asked for by his parents.
• We similarly agreed to the wording required in respect of a behaviour management programme, to replace the existing wording in the statement."
Thus, the tribunal were accepting the new proposed substituted paragraphs 2 and 4 of part 3 of the statement which I have already quoted. Under part 4, its conclusion was as follows:
"We have decided after very careful consideration that, although everyone currently working with C at school and from the SSD had shown care and sensitivity to his needs, we are not satisfied that the mixed programme he is receiving from various sources is currently meeting these needs. He is a severely autistic boy, currently operating at the level of a 4 year old. Whilst we accept that he is well managed at school, we equally noted that his behaviour at home is very disturbed and causes great distress to his family. Only in the setting of a school where a 24 hour curriculum is available can C in our judgment expect to make any significant progress. He is nearly thirteen and a half years old and not a great deal of time is left of his school days for such a programme to be implemented for him.
"It is therefore our decision that Bishopswood School, coupled with any form of respite care currently available, is not appropriate for C, but that Prior's Court does represent the right place for him now. We have some concerns about the school, particularly as regards the absence of a head teacher until August and concrete programmes for integration with a wider peer group, but these concerns do not override our basic decision. We hope the provision of a wider peer group can be attended to in C's interests when he attends the school.
"It follows from our decision about placement that the question of costing is not a relevant consideration. We noted the evidence of Mrs M to the effect that the family would be responsible for C's transport costs to and from Prior's Court and we have therefore included this as a condition of his placement at that school."
The tribunal then went on to say that careful consideration had been given to the appeal papers and all the evidence at the hearing, and regard had been had to Chapter 8 of the Code of Practice. Part 4:
"Reference to Bishopswood School is to be deleted and replaced by the following:-
'Placement at Prior's Court School as a boarding pupil, upon condition that Mr and Mrs M are responsible for all transports costs for C to and from the school.'"
As regards the statutory framework applicable to the case, a brief summary and extracts of the relevant provisions are all that is necessary. The relevant provisions of the 1996 Act are as follows:
"324 Statement of special educational needs
(1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.
(2) The statement shall be in such form and contain such information as may be prescribed."
The form and information have been prescribed by regulations which I need not quote.
"(3) In particular, the statement shall-
(a) give details of the authority's assessment of the child's special educational needs, and
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
"(5) Where a local education authority maintain a statement under this section, then-
(a) unless the child's parent has made suitable arrangements, the authority-
(i) shall arrange that the special educational provision specified in the statement is made for the child, and
(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate."
Section 326 provides for an appeal against the local education authority's decision. Chapter 8 of the Code of Practice, to which I have already referred, reads, so far as is relevant, as follows:
"Part 2: Special educational needs (learning difficulties)
8.32 Part 2 of the statement should describe all the child's learning difficulties identified during the statutory assessment. It should also include a description of the child's current functioning - what the child can and cannot do. The description in Part 2 should draw on and may refer to the professional advice attached in the appendices. Where the LEA adopt that advice in their description of the child's learning difficulties, they should say that they have done so. But merely stating that they are adopting the advice in the appendices is not sufficient. The advice received may contain conflicting opinions or opinions open to interpretation, which the LEA must resolve, giving reasons for the conclusions they have reached. All advice must be considered and appended to the statement. Part 2 should be set out in a fashion which can relate directly to the description of provision set out in Part 3(b).
"Part 3: Special educational provision
8.33 Once a child's special educational needs have been assessed and set out in full in Part 2, the LEA must specify, in Part 3, the special educational provision to meet those needs. The key objective in specifying provision is to help the child to learn and develop.
"Part 5: Non-educational needs
8.43 Part 5 should set out any non-educational needs of the child which the LEA either propose to meet or are satisfied will be met, by arrangement or otherwise, by the health services, social services department or some other body.
"Part 6: Non-educational provision
8.44 Part 6 should set out the non-educational provision which is required to meet the needs identified in Part 5 and which the LEA either propose to make available or are satisfied will be provided by the social services department commissioned by the health authority in discussion with the Primary Care Group or Primary Care Trust for the area, or by other providers."
I now come to the submissions of Mr Oldham, on behalf of the appellant. Whilst these were developed with skill and by reference to authority, they were in their essence simple: (1) that the tribunal erred in deciding upon Prior's Court School on the basis of grounds other than C's educational needs, in that it was improperly influenced by his care needs, which were the subject of a separate duty placed upon the social services department and therefore not properly to be taken into account by the tribunal; (2) part 3 of the statement, even as amended by the tribunal, did not specify 24 hour educational provision as being necessary for C's identified educational needs; and (3) the decision about placement was not supported by any adequate reasons. Mr Oldham was careful not to go so far as to submit that the decision itself reached by the tribunal was irrational in the sense that no reasonable tribunal could have arrived at it. He submitted that the errors in law and the absence of proper reasoning to support the decision meant that it was fatally flawed. He said that it should therefore be quashed and the matter remitted for consideration by another tribunal. Mr Oldham prayed in aid the remarks of the tribunal reported by Ms Rodway as going beyond mere sympathetic comment, and as indicating that it was unduly swayed by the undoubted difficulties of Mr and Mrs M in caring for their son.
Mr Oldham further relied on the references in the tribunal's summary of the facts to matters which included costs which were the responsibility of the social services department of the appellant, not the education department. He submitted that this erroneous thinking was carried through to the conclusions with their reference under paragraph C to C's disturbed behaviour at home and the distress that caused to his family. Mr Oldham says that these aspects of the decision showed that the tribunal was unduly influenced by C's non-educational needs. He points out that the Education Act 1996, section 324(5), and the statementing process itself makes a clear distinction between the two aspects of need; for example, a local education authority is required to arrange special educational provision, but has a discretion as to whether or not to arrange non-educational provision.
Mr Oldham relied on B v Isle of White Council [1996] ELR 279, a decision of McCullough J in this division. In that case the court held that on the particular facts before it, the tribunal was entitled to conclude that occupational therapy and physiotherapy were not an "educational provision". The local education authority had accepted that in some cases they could amount to educational provision, but contended that in that case they did not, since they fell at the medical, and therefore non-educational, end of the needs spectrum.
Mr Oldham also referred to a series of decisions of the Court of Appeal, which included Richardson v Solihull Metropolitan Borough Council and Hereford and Worcester Council v Lane, as well as other cases all heard together, [1998] ELR 319, and finally Shead v Somerset County Council [2002] EWHC 1808, a decision of Sir Richard Tucker in this court. The latter case turned upon the interpretation of section 9 of the 1996 Act, and the meaning in that section of the expression "unreasonable public expenditure". The judge held that public expenditure in that context meant that of the local authority's education department, not of the public authority as a whole. That decision, submits Mr Oldham, who appeared in that case, demonstrates the error of the tribunal's approach in the present case in taking into account the expenditure of the appellant's social services department in the course of its factual summary.
Mr Friel, on behalf of the first respondents, draws my attention to the significant overlap which has been recognised by the courts between educational and other provision. He submits that a broad definition of education is appropriate, especially in a case such as that of C, who requires significant extra measures as a result of his severe disability to enable him to achieve the relatively limited educational attainment of which he is capable.
Mr Friel relies on London Borough of Bromley v SENT [1999] ELR 260, especially the judgment of Sedley LJ from page 290D to 296C (Mr Oldham later pointed out that in that case, unlike the present case, the tribunal had made a specific finding as to educational need in relation to the matter disputed, which, submitted Mr Oldham, distinguished that case from the present one).
Mr Friel relied on R v Lancashire County Council, ex party M [1989] 2 FLR 279, especially the judgment of Balcombe LJ in the Court of Appeal, page 301F-H and 302G-H.
Mr Friel further submitted that the legislation imposed a positive duty on the local education authority to give its attention to non-educational needs in co-operation with the social services department. He referred specifically to the passages of the Code of Practice from which I have already quoted. He submitted that the tribunal was therefore fully justified in requesting information about how any non-educational needs would be met.
I come now to my findings on this appeal. The starting point is Mr Oldham's submission that SENT's decision was not in itself irrational, but rather invalidated by its erroneous approach. In considering the context of the tribunal's findings, it is necessary to have regard to the nature and extent of the evidence which was capable of justifying its decision, particularly where that evidence was either agreed or not disputed. Essentially, it was not in issue that C, though 13 years old, was functioning at the level of a 4 year old. His situation can perhaps most usefully be described by referring to the evidence of Mr Reid:
"C clearly shows the triad of impairments associated with an autistic spectrum disorder; he has severely impaired communication skills, impaired social skills and difficulties in abstract concepts and, by extension, imaginative and limited play. There seems to be no reason why people should continue to refer to him as having 'autistic tendencies'. The formulation has significant implications for prognosis and placement; it tends to be a term which is used for children who have a global developmental delay and who show, in association with this, stereotypic behaviours ... The evidence clearly is that C's primary area of need relates to his autism and that his learning difficulties are associated with his autism; this is for example demonstrated by the discrepancies in relation to his cognitive functioning and again has clear implications for prognosis. 75% of autistic people have severe learning difficulties; C is one of those small group of children who have complex learning difficulties associated with autism and for whom autistic specific provision is clearly indicated."
Up to this point Mr Reid's evidence was not effectively in issue. However, the following passage was not, or not necessarily, accepted by the appellant:
"Coupled with the need for high levels of expertise and training, is the need for a highly consistent approach throughout C's waking day. There are major difficulties in implementing a communication or social skills programme, or indeed having him conform to expectations in relation to independence skills, when he has three different settings to contend with; home, school and respite care. There are simply not enough opportunities to implement the consistent programmes which he requires in major areas at home - given the need, as identified above, to have him dressed at a specific time for a school bus to collect him, having few opportunities at school to practice dressing and undressing and having different requirements in relation to skills such as eating and toileting. It is therefore essential, in my view, that he has a programme, which can be applied consistently by staff throughout his waking day ...
"The Educational Authority has identified the need for a behaviour modification programme in relation to these behaviours. Research would suggest (as reviewed by Howlin) that behaviour modification with autistic children simply is not effective...
"There are also very significant pressures placed upon the family; it is essential that these are eliminated, not only for the individual members of the family but also if the home is to become somewhere where programmes devised and implemented elsewhere, are to be positively reinforced. The family home, under pressure and stress, is not an environment where these measures can happen.
"I would heartily endorse the parental request for residential placement at a school such as Prior's Court which is autistic-specific, can offer a range of therapies and reinforcement which C requires, and which will recognise his complex needs and the strengths he undoubtedly has and which can be worked with. I would anticipate that he would make significant progress within such an environment."
(Incidentally, whilst not relevant to this appeal, the view expressed in the last sentence appears to have been borne out by subsequent events).
The appellant, whilst not accepting the latter part of Mr Reid's opinions, does accept as part of C's special educational needs a behaviour management programme. This was the case under part 2 of the statement before it was amended, as well as after. The relevant quotation from part 2 of the statement is as follows:
"C has the following special educational needs
... C needs a behaviour management programme, to reduce anxiety, that names rewards/sanctions, that will be systematic and explicit, and applied rigorously by all care givers."
It may be said that disruptive behaviour can in any normal situation always be an obstacle to education, but it is clear, in my judgment, from the context that this case did not involve a normal situation. It is accepted that C's learning difficulties were severe. His education and development were intimately bound up with his behaviour. His progress depended, therefore, on the provision of a structured scheme to enable the necessary education to take place by inter alia managing C's behaviour. Whilst part 2 recognised that need in the passage just cited, and recognised it as specifically applicable to all care givers, I accept Mr Friel's submissions that part 3, as originally drafted by the appellant, was deficient in that it did not make any explicit provision for such a programme outside school hours.
There was other evidence available to the tribunal to support the proposition at paragraph 3 of the appellant's own statement from which I have just quoted, and which defined C's needs for a programme out of school. There was before the tribunal evidence in the form of a statement from the senior residential social worker from Barnardos, who was responsible for the Chiltern Centre on the appellant's behalf, Marian Lee. Her statement included the following:
"Because of his need for consistency and inflexibility, disjointed elements to his care could prove very damaging for him. The present arrangements for C's development are inadequate despite doing our very best for him, as we cannot offer the type of provision he needs, i.e. a 24 hour specialised consistent, seamless approach. He is only just holding his head above water. Chilterns acts as an extension to home, to give his family a short break. It is not an educational establishment and the young people we cater for are vulnerable, have physical and/or learning difficulties and are not perceived as having the kind of challenging and anti-social behaviour C exhibits."
She then goes to describe how C's difficulties have escalated with time, compounded by the lack of progress in communication. She then continues:
"Unfortunately within County there is no alternative suitable provision for young people like C and given that we are only just coping, it is a concern to us that his management is becoming increasingly specialised and outside our brief."
She then goes on to speak of difficulties encountered by the interruption of C's day by the need to take him by taxi to the centre. She describes the cycle of negativity. She says:
"Even the taxi journey of five miles (just ten minutes) from school to Chilterns is a constant source of anxiety for him. Something as simple as a change in route can provoke an assault on the taxi driver and escort when he arrives at his destination. Recently staff had to intervene in the car park when C was kicking, punching and spitting at the escort who was unable to defend himself."
She then continues by saying that in the planning of future provision, frequent, lengthy journeys would be detrimental to C's safety and that of any occupants in his taxi. She concludes:
"I cannot over-stress the importance of considering very carefully his next provision, given his very complex and demanding needs as it is fundamental and crucial to his future development and safety to him and all these around him."
There was then a statement from Mr Hassall, the clinical psychologist. He said, among other things:
"I would therefore support the view that C needs a very specialised environment, both during school time and outside school hours. This is not simply a matter of setting up a 'behaviour modification programme' and expecting a change of behaviour to follow from some degree of contingency management. I note the comments of Albert Reid, in his psychological assessment dated 9.5.01, that children with autism have difficulty in generalising learning from one situation to another and that simple behaviour modification is often not effective with such children. I therefore think that the arrangements for C need to reflect the fact that any effective management plans for helping him develop more socialised behaviour would need to be implemented in an environment designed for this purpose. Additionally, for children with autism, particular attention needs to be paid to encouraging language comprehension and expressive communication, which is a particular area of difficulty for these children and frequently contributes to their challenging behaviour."
Then the psychologist continues, crucially:
"To be effective, communication programmes need to be implemented throughout the day in a consistent manner, not just during school hours. Specialist training is also necessary for staff carrying out this work.
"I very much hope therefore that it will be possible for C to be able to attend Prior's Court School, as this seems likely to offer the best available environment for his needs. It also offers the advantage of being close enough to his home to allow him to have weekends at home and to maximise the opportunities for contact between his parents and the school staff."
In my judgment, in the light of the evidence I have just quoted, the last examples of which come from practitioners or experts instructed or engaged by the appellant, there was strong, if not overwhelming, evidence that C required a management programme that was "systematic and explicit and applied rigorously by all care givers", as part 2 of the statement stipulated. Crucially, it was a management programme that, as part 2 made clear, was an "educational need". That is the context in which Mr Oldham's submissions to the effect that the tribunal erred in its approach to the law fall to be considered. In that context, it is, in my judgment, plain that the reason why the tribunal adjourned at the first hearing was in order that the appellant should have the chance to show that St Nicholas House, or any alternative institution, was capable of providing beyond school hours the kind of educationally suitable and structured programme which C's needs demanded. If for no other reason, the intention of the tribunal was made clear by the direction that Mr Reid should have full facilities to visit and inspect the project; Mr Reid's expertise, of course, being in educational psychology.
The recognition that Ms Rodway could not compel delivery of the information because the project was controlled by the social services department is, in my judgment, irrelevant. It was clearly the intention of the tribunal to give the appellant the opportunity to show that the project was one consistent with C's educational needs. Further, when the tribunal set out the evidence on which its conclusion and findings were based, it relied on matters which again related to C's educational needs.
In my judgment the inclusion of a figure for the cost of the social services department support in that part of the decision does not indicate, still less constitute, an error of law. The tribunal in its findings at paragraph E states that the costings were not a relevant consideration in the decision itself.
In addressing part 3 of the statement, the tribunal specified, in substituting a new paragraph 4, that there should be a delivery "throughout his waking day within a consistent and structured environment" of programmes for C, these programmes consisted very substantially of educational provision.
In addressing part 4, the tribunal finds:
"only in the setting of a school where a 24 hour curriculum is available can C in our judgment expect to make any significant progress".
These last two findings make it abundantly clear that the appropriate programmes needed to engage C throughout his waking hours, and thus gave rise to the need for a 24 hour curriculum.
The findings, in my judgment, underpin the decision to direct placement at Prior's Court. They left, in reality, no alternative in the particular factual context of this case other than a boarding school provision. The contrast with, for example, the facts in the case of Lane is clear in this regard. The reference at paragraph C of the conclusion to C's disturbing and distressing behaviour at home did not, in my view, indicate any error of law on the tribunal's part, and does not affect the lawfulness of the findings.
There is therefore, in my judgment, no substance in the suggestion that the chairman of the tribunal's sympathetic initial remarks at the first hearing, or the adjournment of that hearing, form any basis for arguing that the tribunal allowed itself to stray from its proper task.
I conclude that the tribunal directed itself correctly. It did not, in its reasons, explore in any detail or expressly the distinction between educational and non-educational provision. Doubtless Mr Oldham made his points about that before the tribunal eloquently, but the reality was, and is, that the evidence on the topic was virtually all one way, not only from the first respondents, but from much of the evidence presented by the appellant as well. It pointed to the failure, despite some limited recent improvement, of the existing educational provision, and the need for a significantly more extensive and effective arrangement. It pointed to the need for a so-called 24 hour curriculum. SENT was, in my judgment, entitled to conclude that the placement at Prior's Court was the best and, indeed, the only method for delivering this. It did not err in its approach to the matter, and properly analysed, its reasons support the approach which it took.
For those reasons the appeal must be dismissed.
MR FRIEL: My Lord, I would apply for the costs. Both parties have had discussions, and this is a case in which it is agreed, because there are some complex issues relating to costs, that it should be an assessment of costs. So I will apply on behalf of the respondents that the costs be assessed. I am grateful, my Lord.
MR OLDHAM: I do not resist that.
MR JUSTICE GIBBS: Very well. I make costs in favour of the first respondents' detailed assessment. Thank you very much. | 2 |
Mr Justice Foskett:
Introduction
The Spanish authorities consider that the Appellant is, or at the material time was, a member or supporter of Euskadi Ta Askatasuna ('ETA'), the Basque nationalist and separatist organization.
The Appellant, who was born in Bilbao, is now aged 47.
Along with others the Appellant was arrested in the early morning of 6 June 1991 in circumstances set out in the European Arrest Warrant ('EAW') to which I will refer below. He spent 4 years in custody in Spain awaiting trial, but by June 1995 the trial had not commenced and, because the maximum period of pre-trial detention in Spain (equivalent to the 'custody time limit' in the jurisdiction of England and Wales) is 4 years, he was released from custody conditionally on 9 June 1995.
Having breached the terms of his conditional release an order for his remand in custody was issued by the 5th Section of the National High Court of Madrid on 5 or 6 September 1995. He did not surrender to the court in compliance with that order and at some stage he came to the UK. He accepts that he left Spain knowing of the outstanding criminal proceedings against him.
An EAW was issued over 16½ years later on 27 June 2012 seeking his extradition to Spain to face trial. On 16 November 2012 he was arrested in Liverpool after 17 years of being "wanted" in Spain.
The Appellant contested his extradition. The final extradition hearing took place before District Judge Nicholas Evans on 16 April 2013. In a reserved judgment delivered on 7 May 2013, the District Judge ordered the Appellant's extradition to Spain.
He appeals to this court against that decision pursuant to section 26 of the Extradition Act 2003.
The terms of the EAW
The warrant is, as I have indicated, an accusation warrant. The (translated) particulars given in the warrant of the alleged offences in respect of which extradition is sought are as follows, the numbering being numbering I have added for ease of subsequent reference:
"1. [The Appellant and others] were recruited for the terrorist organisation E.T.A. Militar in 1990. They were trained in handling arms and explosives, in a flat located in Deusto. They were told the objectives to be pursued. They were given weapons and explosive material and information. On various occasions they carried out verifications and collected much information on members of law enforcement bodies, drug dealers, the Civil Governor in Biscay, supported various actions and carried out the orders given by "Gadafi", "Manu" and "Turko".
Apart from this they had several hiding places filled with arms and explosive material to be precise:
a) a mobile fridge hidden in Archanda Hill, inside of which were an automatic rifle M.A.T. with its numeration wiped off, two magazines, two grenades made in France as well as one grenade type E.T.A, and an explosives handbook;
b) a hiding place located in Trapaga Valley (Biscay) that was hidden by sleepers. It contained screws for shrapnel;
c) A hiding place located at Archanda Hill. This hiding place was made by GERMAN URIZAR, in the vicinity of the Tueba School. This hiding place contained a bag with a pair of surgical gloves;
2. From the 6th of June 1991 on, two pistols make Browning and one pistol make Sig Sauer were seized from JON MIRENA, [the Appellant] and GERMAN URIZAR. All serial and manufacturing numbers had been wiped off. On the 22nd of May 1991, RAUL ALONSO ALVAREZ, following the orders given by the three ETA members TURCO, GADAFI and MANU, left the group and handed over his pistol and an explosive device which he and GERMAN URIZAR had received from the three ETA members at the Deusto flat since it did not work. Two hours later they gave back that device to the last individual mentioned in order that he places that device in a vehicle that belongs to a police officer who was living in Baracaldo. The vehicle was a white Ford Scort, with license plate VA-4061-P. They had already informed about this vehicle. This vehicle used to be parked in Calle Landabeko.
3. For the purpose of carrying out the action that had been ordered by JUAN CARLOS IGLESIAS CHOUZA, JESUS MARIA MENDINUENTA and JUAN MARIA ORMAZABAL, in the first place they kept the pistols and device at JON MIRENA's home. JON MIRENA, [the Appellant] and GERMAN URIZAR DE PAZ picked up those items once they had carried out several verifications regarding the place where the car in which the explosive had to be placed used to be parked. In the early morning of the 6th of June 1991 they cautiously approached the vehicle but could not place the explosive since they were caught by police when trying to do so.
4. When police officers shouted "STOP POLICE", [the Appellant] left the weapon he was carrying on the vehicle roof. GERMAN URIZAR who was carrying the bag with the explosives as well as JON MIRENA started running, but not without first throwing the bag to the ground and firing several rounds at the corner of Calle Lukizago. They did not succeed in shooting the police officers, but police officers had to return fire. Eventually both men were arrested."
Deusto, referred to in (1), is a district of Bilbao.
The warrant refers to the "nature and classification" of the offences and the applicable parts of the Spanish Criminal Code, all of which were summarised as follows:
i) 'membership in a terrorist organisation' (referred to elsewhere in the warrant as 'participation in an armed group') - punishable by 10 years imprisonment and a fine of €6,000 - contrary to Articles 147 (which is thought to be a typing error for '174') and 173;
ii) 'attack … in conjunction with the offence of attempted murder' - punishable by 20 years imprisonment - contrary to Articles 233 and 406;
iii) 'possession of weapons of war' – punishable by 12 years imprisonment - contrary to Articles 257 and 258;
iv) 'possession of explosives' – punishable by 12 years imprisonment - contrary to Article 264.
The EAW was issued by Judge Fernando Garcia Nicolas on (as previously indicated) 27 June 2012 and certified by SOCA on 23 October 2012.
Certain further information was requested by the Respondent from the judicial authority and the prosecution in Spain in March 2013 to which I will refer later.
I will refer to the reasons given by the District Judge for the decision to which he came when dealing with the Grounds of Appeal advanced before me.
The hearing of the appeal was delayed pending judgment in the case of Sanchez v The Second Section of the National High Court of Madrid, Spain [2013] EWHC 2264 (Admin) and then the Supreme Court's decision on the application for leave to appeal against Artola v The Sixth Section of the National High Court of Madrid, Spain [2013] EWHC 524 (Admin). Permission in that case was refused by the Supreme Court on 28 October 2013 on the basis that the case did not raise an arguable point of law which could lead to a different substantive result.
The grounds of appeal
Mr Mark Summers QC, for the Appellant, relies upon three of the four grounds of appeal originally advanced. He accepts that there is no prospect of succeeding on Ground 2 in the light of the outcome in Artola v The Sixth Section of the National High Court of Madrid, Spain, but he reserves the right to take the point if this case should go further. I say nothing more about that ground.
The other grounds can be summarised as follows:
Ground 1
The District Judge erred in concluding that the EAW contained adequate particulars of the conduct alleged in respect of offences numbered 3 and 4 above pursuant to section 2(4)(c) of the 2003 Act.
Ground 3
The District Judge erred in concluding that the extradition of the Appellant was not a violation of Articles 5 and/or Article 8 of the ECHR or section 64 of the 2003 Act, in circumstances where the limitation period has expired under Spanish law.
Ground 4
The District Judge erred in concluding that the extradition proceedings were not an abuse of process, in circumstances where the Appellant had been tortured by the Requesting State.
Ground 1
It is, perhaps, helpful to indicate in the first instance the District Judge's reasoning, which itself encapsulates the arguments advanced to a degree, and then to deal with the criticisms made by Mr Summers. I should say that submissions were made before the District Judge about the adequacy of the particulars in relation to charges 1 and 2, but the criticisms then made are no longer pursued. The District Judge's conclusions on the arguments relating to charges 3 and 4 were as follows:
"6. Section 2(4)(c) of the Act requires the EAW to provide particulars of the circumstances in which the person is alleged to have committed the offence including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence.
…
9. It is submitted the third offence, possession of weapons of war, lacks specificity as it (the offence) might relate to (a) those with which the [Appellant] trained in the flat in Deusto in 1990, (b) those that were supplied to him after his training, (c) the rifle hidden in the mobile fridge in Archanda Hill and/or (d) the gun he left at the scene on 6th June 1991. Mr Caldwell suggests it refers to all of those. In my view the warrant implicitly is referring to (d) and there is no real confusion.
10. A very similar submission is made in relation to fourth offence of possession of explosives. My response is as above. The warrant implicitly is referring to (d), the explosive device that was to have been placed under the car on 6th June 1991; which was (implicitly) recovered as an exhibit.
11. I am satisfied that sufficient particulars have been provided in respect of all four offences and this EAW is a Part 1 warrant in compliance with section 2(4)(c) of the Act."
Perhaps not surprisingly, Mr Summers has homed in on the difference in view between the position taken by Mr Caldwell in his submissions to the District Judge and the position taken by the District Judge. Mr Summers puts his argument attractively in his Skeleton Argument when he asserted that these two contrasting approaches to the EAW "visibly [demonstrate] its ambiguity". He submits that the EAW fails to specify the weapons (which he equates with the "conduct") to which Charge 3 relates or the explosives to which Charge 4 relates. Do the allegations, as the District Judge recorded, relate to (a) those with which the Appellant "trained" in the flat in Duesto in 1990, (b) those that were supplied to him after his training, (c) the rifle (and the grenades) that he had hidden in the mobile fridge in Archanda Hill and/or (d) the gun (and/or the explosive device) that he left at the scene on 6 June 1991, or some combination or all four? The divergence of view, he submits, demonstrates that the answer is sufficiently uncertain for section 2(4)(c) not to have been met. Mr Summers recognises that the effect of an order discharging the Appellant on this ground would be likely to be a new warrant, more specifically directed, for offences 3 and 4.
Mr Summers draws attention to Dhar v National Office of the Public Prosecution Service, the Netherlands [2012] EWHC 697 (Admin), a decision of a Divisional Court comprising Moore-Bick LJ and King J. It is, of course, one of many cases where the question of the adequacy of the particulars in an EAW has been considered, a number of which were reviewed by King J at [63]-[70]. The two passages of particular relevance to the test to be applied are as follows:
"The Appellant is entitled … to sufficient particulars to enable him to understand how the case is being put against him on critical allegations without that understanding being obscured by the fog of vagueness or ambiguity." (per King J at [81].)
"Although I accept that the warrant need not contain highly detailed information of the kind that one might expect to find in a civil pleading, it must contain enough information to enable the requested person to understand with a reasonable degree of certainty the substance of the allegations against him, namely, what he is said to have done, when and where, and also, in a case where knowledge of particular matters is an essential ingredient of the offence, sufficient information to enable him to understand why it is said that he had the necessary knowledge." (per Moore-Bick LJ at [117].)
Mr Summers submits that there is a risk that the specialty protection otherwise to be afforded to the Appellant may be lost if further clarity is not given. He also argues that if, for some reason, the events of 6 June 1991 are "not prosecutable" offences 3 and 4 should "fall away".
Mr Caldwell does not shy away from his primary proposition that the particulars relating to the guns and explosives relate to all the offences and not just to those alleged to have been committed on 6 June 1991. He submits that the EAW gives full and specific particulars of the relevant conduct, including the period of time during which the Appellant is said to have been involved in ETA and the locations where firearms, explosives and bomb-making equipment were secreted. His participation in the handling of explosives and weapons, as well as the hiding of these articles, is expressed in terms of a joint enterprise with the others named. In respect of his conduct on 6 June 1991, Mr Caldwell submits that the warrant is unambiguous: the Appellant is said to be with two others who are named (Jon Mirena and German Urizar de Paz) and a joint attempt was made to place an explosive device on a police officer's vehicle at an identified location (Calle Landabeko, Baracaldo) and that each of them had a pistol (said to be a "weapon of war"). The warrant, he submits, identifies clearly and unambiguously the parameters of the alleged conduct and there is, he asserts, no uncertainty about the explosives or weapons with which the Appellant is alleged to have been concerned. His participation encompasses training in the use weapons and explosives, the hiding of these articles and their ultimate use in what was to be an attempt on the life of the police officer.
Whilst, of course, careful consideration must always be given to the question of whether an EAW fails to satisfy section 2(4)(c), quite frequently the answer will be based upon an overall impression of what is set out rather than a minute contextual analysis of the contents or individual aspects of the contents, a contextual analysis that, if undertaken, would be upon a document translated into English from the original. Equally, it is necessary to look at the particulars given as a whole in order to see whether it can be said that the particulars for any individual offence are inadequate. The way that this EAW is framed is not dissimilar to the manner in which many warrants that come the way of the Administrative Court on appeal are framed, namely, in a narrative way that tells the story of the alleged participation of the Appellant in the offences specified. Here the background to the events of 22 May and 6 June 1991 are set out fully and, as Mr Caldwell says, there is no uncertainty about the explosives or weapons with which the Appellant is alleged to have been concerned.
For my part, I would agree with the District Judge that the EAW was sufficiently particularised, but I would not myself conclude that any particular "implication" needs to be made to make good that conclusion. To the extent that it is of relevance, I would, for my part, say that it is clear that offence 3 embraces conduct going beyond the conduct alleged for 6 June 1991 because it follows offence 2 which itself refers to the events of 22 May. Offence 4 appears to relate solely to the Appellant's involvement with the weapon he had with him for the purposes of the events of 6 June 1991. To that extent the particulars are clear and there is no "fog of vagueness or ambiguity" – the Appellant knows to "a reasonable degree of certainty the substance of the allegations against him" and which he will have to meet on his return to Spain if ordered.
Mr Caldwell also says in this connection, in my view with justification, that there is nothing to suggest that Spain will not honour its international obligations in respect of specialty. Indeed so much was confirmed by a passage in the judgment of the Divisional Court (Richards LJ and Silber J) in Brodziak v Circuit Court in Warsaw, Poland [2013] EWHC 3394 (Admin) at [46]:
"There is, moreover, a strong presumption that other Member States will act in accordance with their international obligations in respect of specialty. In Hilali v Central Court of Criminal Proceedings Number 5 of the National Court, Madrid [2006] 4 All ER 435, Scott Baker LJ referred to "a surprising submission that Spain is likely to act in breach of the international obligations to which it has signed up" (para 52). In Ruiz & Others v Central Court of Criminal Proceedings No 5 of the National Court, Madrid [2008] 1 WLR 2798, Dyson LJ endorsed the approach in Hilali, stating:
"67. It is to be presumed that the Spanish authorities will act in good faith in the absence of compelling evidence to the contrary. They are trusted extradition partners and parties to the Framework Decision. They have incorporated the specialty rule into their domestic law, so that the appellants have a remedy under their domestic law in the unlikely event of a breach of specialty.
68. Secondly, there is no compelling evidence that the Spanish authorities will act in breach of their specialty rule and article 27 of the Framework Decision. Castillo's case (which was governed by the Extradition Act 1989) does not provide such evidence. It appears that proceedings have not been completed. Even if Castillo's case were to be evidence of a breach of specialty, it would be a single instance. There is no other evidence. Moreover, if there has been a breach of specialty in that case, the defendant has his remedy in Spanish domestic law."
The need for compelling evidence of a breach of specialty arrangements was further emphasised in Arronategui v 1st, 2nd, 3rd, and 4th Sections of the National High Court Madrid, Spain [2012] EWHC 1170 (Admin), at para 47."
In my judgment, the challenge to the particulars of the EAW fails.
Ground 3
Before the District Judge Mr Summers called as a witness Senor Don Alfonso Zenon who is a Spanish defence lawyer who will represent the Appellant in Spain if he is extradited. His evidence was to the effect that all of the offences specified in the EAW (which are offences committed prior to the coming into force of the 1995 Criminal Code in Spain) are subject to the limitation periods specified in the 1973 Spanish Criminal Code. He explained that Spanish law operates in accordance with Article 7 ECHR such that if the law is changed more restrictively after the commission of an offence, a defendant is entitled to the benefit of the more favourable law. Apparently, the limitation laws were generally made more restrictive by the 1995 Code, but because the relevant offences date from 1991, the Appellant is entitled to the benefit of the 1973 Code and its more favourable limitation periods.
Senor Zenon's evidence was that the relevant limitation period in a situation such as that revealed by the EAW in this case is defined by the limitation period applicable to the most serious offence. According to the Spanish Criminal Code, "attack, in connection with the offence of attempted murder" (contrary to Articles 233 and 406 of the Code) is the most serious offence because, as the EAW demonstrates, it is punishable with up to 20 years' imprisonment. He said that what he described as "the prescription" would take effect after 15 years, a period which, he said, began with "the judicial ruling which marks the moment in which the procedure is commenced against the culprit" which in this case is "the ruling dated the 5th of September 1995". Since the EAW was issued on 27 June 2012 (some 16 years and 9 months later), the "prescription" would apply.
He prepared a report to this effect dated 5 March 2013. The Respondent referred the report to the Judicial Authority and to the prosecution in Spain. The judge (Angel Hurtado Adrian, the Presiding Judge at the Second Chamber of the Criminal Court at the National Court) replied on 20 March 2013 in the following terms:
"The judge who signs this document will not inform on this point, since he is not appointed to sit on the Court which, if appropriate, will hold the oral hearing once the requested person is in our country. As you know, any discussion on the statute of limitations implies going into the substance of the case. This matter must be resolved pursuant to our national law and national case-law. In any case, for further information on the statute of limitations see the Public Prosecutor's report attached hereto.
What we can say is that if this Court in view of the background information had deemed that the statute of limitations period for the crimes the requested person is charged with had elapsed, this Court would not have issued this EAW."
The prosecution said this:
"The authorities who ask for more extensive information should be reminded of the fact that the elapse of the statute of limitations period in the requesting State is not among the grounds for optional non-execution of a EAW covered by article 4 of the Framework Decision of 13 June 2002. Only where the requested State has jurisdiction over the facts, the requested State has the right to apply the statute of limitations applicable under the laws of the requested State. The requested State must never assess the statute of limitations applicable under the law of the requesting State. To call for a clarification of that point infringes directly the above Framework Decision. A modicum of respect for mutual confidence on which the regime applicable to EAWs is based makes it impossible to accept an issue that goes far beyond the European Union provisions.
Notwithstanding the foregoing, it should be made clear that the statute of limitations period for these facts has not elapsed, neither pursuant to the Spanish Criminal Code of 1973 nor pursuant to the Spanish Criminal Code of 1995."
The prosecution response then goes on to justify the position indicated in the second paragraph of that quotation. It asserts that the limitation period for attempted murder and attack is 20 years and that the relevant period has not expired under the Criminal Code of 1973 since the Appellant was "prosecuted" on 6 July 1992 (which is probably a mistake or mistranslation for 6 June or 6 July 1991) and that the proceedings have been "paralysed" since the order of 5 September 1995 (see paragraph 4 above). Equally, it is said that the period under the Criminal Code of 1995 has not expired either: that period is also said to be 20 years.
Those competing views were considered by the District Judge. As I have indicated, Senor Zenon gave oral evidence and was cross-examined. As I understand it, no oral evidence was given by an expert on behalf of, or other representative of, the prosecution in Spain.
The District Judge introduced his response to this argument in this way:
"23. … Paragraph (f) of the EAW provides an opportunity for a [judicial authority] to enter information relating to limitation periods. In this case that paragraph has been left blank. In those circumstances the court would normally proceed on the basis that there was no limitation issue.
24. However, here [the Appellant] raises a limitation issue and seeks to persuade the court that the limitation period has elapsed and that if he were to be extradited he would be entitled to rely upon it and demand his immediate release. If that is correct then to keep him in custody here pending extradition or even worse to order his extradition would be incompatible with his Convention rights in particular his article 5 and 8 ECHR rights and further could be said to be an abuse of process by the [Judicial Authority] if it appreciates that any prosecution in Spain, is doomed to fail on this limitation point."
He then referred to Senor Zenon's evidence and to what he described as the "rather tetchy" response of the Judicial Authority and said that the judge's view, as revealed in the passage quoted in paragraph 28 above, "does little to reassure anyone that he turned his mind to the issue." He also referred to the prosecutor's view (see paragraph 29 above) and said (correctly, in my view) that it was wrong to say that "the requested state must never assess the statute of limitations applicable under the law of the requesting state" (my emphasis), although the District Judge observed that for the issue to arise it must do so as part of an abuse argument. I will return to that position shortly. He said that there was no basis for alleging abuse here and his conclusion on this issue was expressed as follows:
"… I have to be satisfied that the [Judicial Authority] honestly believes that it has a sustainable case against [the Appellant]. This is not an instance of a [judicial authority] claiming to have such a belief but offering no explanation for its belief. The [Judicial Authority] has here squarely addressed the argument advanced by [the Appellant] that the limitation period has elapsed. In my view, it cannot be concluded that its reasoned position, as set out in the Public Prosecutor's letter of 2lst March 2013, has plainly no merit and that the [Judicial Authority] knows that it has no merit, so as to found an abuse of process. I do not say that [the Appellant's] arguments will inevitably fail, or even that it is likely to fail. But on the authorities that is not the relevant test for determining whether there has been an abuse of process."
On that basis he said that he did not need to determine the issue of whether the limitation period had expired, but indicated his view of the evidence "if a higher court were to conclude that there is an obligation upon this court to come to a decision, one way or the other, on this point" in the following terms:
"… I did not find Senor Zenon's evidence particularly convincing on the start and end dates of the 15 year period, but I did find him more convincing that it was a 15 year period rather than the prosecutor's assertion that it was a longer one. On balance, and with some misgivings, I find that [the Appellant] has not persuaded me that it is more likely than not that he has become immune by reason of limitation."
Mr Summers relies upon that passage as demonstrating that the Appellant "won on the facts" that there was a 15-year limitation period and that the period had run by the time the EAW was issued. I am not quite sure how that can be asserted given the terms of the final sentence of the passage quoted (which Mr Summers says was "simply illogical"), but at all events the District Judge's expression of view on the effect of the evidence he heard must plainly be treated with some caution. He was evidently reluctant to express a view on the issue (because he considered that he did not need to do so) and such view as the passage quoted conveys was clearly expressed in suitably guarded terms. He had before him only one "live" witness with professed expertise on the matter and did not have the advantage of any "live" countervailing view. That always makes it difficult to make a properly informed decision on a complicated issue such as this: limitation, in whatever context, is often a difficult issue. It also highlights the proposition, to which I will turn shortly, that this kind of debate should only be entered by the courts of the requested state in the most exceptional of circumstances when there is the clearest possible evidence of the engagement in abuse by the prosecuting authorities of the requesting state. It needs also to be remembered that ordinarily there is no limitation period, certainly none prescribed by statute, in relation to crimes as serious as those involved in this case which have to be considered by the courts of England and Wales in relation to offences committed within their own jurisdiction. It follows that those courts are inevitably unfamiliar with the concept. That does not make it impossible for the courts of this jurisdiction to consider the issue if it arises, but a judgment on the issue that commands respect and recognition demands high quality evidence upon which it is based. It is possible, in the light of the District Judge's view, that the Appellant's advisers are right that the Spanish limitation period has run its course (although, speaking for myself, I would be surprised if this was so and, as Mr Caldwell submitted, it is counter-intuitive from the perspective of English law that judicial inactivity should have the effect of suspending the limitation period whilst actively seeking an order for arrest should give a fugitive the benefit of a limitation period running in his favour: Gomes and Goodyer v Government of Trinidad and Tobago [2009] UKHL 21); but irrespective of that, it seems to me that the mere advancement of a potentially erroneous proposition of law does not of itself necessarily evidence abuse of the kind needed for the requested state to intervene. In this case, of course, the disputed proposition emanates, at least implicitly, from the judicial authority of the requesting state.
Mr Summers, however, says that it is wrong for the courts of England and Wales only to address this issue in the context of a potential abuse argument. He recognises that this has been the approach in cases such as Battistini v The Court of Naples, Italy [2009] EWHC 3536 (Admin), Bendik v Judicial Authority of Slovakia [2010] EWHC 1821, Mohammed v The Court of Appeal, Paris [2013] EWHC 1768 (Admin) and Konuksever v The Government of Turkey [2012] EWHC 2166 (Admin). He says, however, that discharge was ordered on limitation grounds in the absence of bad faith by this court in Laskowski v District Court of Legnica, Poland [2011] EWHC 994 and Janaszek v Circuit Court in Plock (Polish Judicial Authority) [2013] EWHC 1880 (Admin). He also draws attention to some cases that address what he describes as "the broadly parallel situation where a defendant has served the entirety of his sentence (or possible punishment) on remand awaiting extradition": see, e.g., Wysocki v Polish Judicial Authority [2010] EWHC 3430 (Admin) and Newman v District Court of Krakow, Poland [2012] EWHC 2931 (Admin).
For my part, I do not see the approach in the cases of Laskowski, Janaszek, Wysocki and Newman as anything more than, in each case, a pragmatic response to an acknowledged and obvious legal situation in the requesting state. I would not myself have deduced from them any support for the approach sought to be established by Mr Summers. Indeed the same, as it seems to me, can be said of Jaffar (No. 1) v HM Prison Brixton [2003] EWHC 3077 and Atilla v Government of Turkey [2006] EWHC 1203 (Admin), both relied upon by Mr Summers. The former can, of course, be said to support the proposition that an expired limitation period may establish "oppression" under the "lapse of time" provisions now to be found in section 14 and the latter that, in similar circumstances, Article 5 may be engaged. However, neither sheds light on what the domestic court should do when the issue is not clear cut and is contested.
Mr Caldwell says that the approach in Battistini (followed by me in Mohammed), which involved disputed opinions about Italian law, is the correct approach and consistent with other authorities. It is worth repeating what Maurice Kay LJ said in Battistini:
"However, the prior question is whether this court should become involved in adjudicating upon these inconsistent interpretations of Italian law. For my part, it seems to me fundamental that in a European Arrest Warrant case it is wholly inappropriate for this court to proceed to adjudicate upon rival interpretations of Italian law. All this is a matter for the Italian courts in accordance with the principle expounded by Lord Brown in Gomes. Quite simply, we should not get involved."
To that Mr Caldwell adds Symeou v Public Prosecutor's Office at the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin), where the Divisional Court (Laws LJ and Ouseley J) had to consider the primary submission of the appellant that "extradition would be an abuse of process because of the way the Greek police had investigated the offence, within which was subsumed what had been a separate argument to the effect that a serious defect in its domestic procedure invalidated the Greek domestic arrest warrant and thereby invalidated the EAW" (see [2]). In that case there was a conflict of evidence before the District Judge as to whether there had been a breach of the Greek Criminal Code by the prosecutor. Ouseley J, giving the judgment of the court, said this:
"49. In our judgment, the District Judge's fundamental concern about hearing evidence about the Greek Prosecutor's compliance with domestic law was well-founded. The EAW system follows the Council Framework Decision of 13th June 2002 which envisages the creation of a common area of justice, in which there would be free movement of judicial decisions in criminal matters, a common judicial area replacing traditional forms of co-operation. A new and simplified system of surrender of suspects for prosecution was to be created. As Lord Hope put it in Dabas … at para 42:
"The principle on which this new system is based is the mutual recognition of criminal decisions between the member states. The European arrest warrant is designed to have a uniform effect throughout the European Union. The effect at which it aims is that of swift, speedy surrender."
50. Lord Hope then applied that principle to the question of whether a judge considering an extradition order based on a EAW needed information not specified in section 2 in order to test whether the conduct alleged constituted an offence against the law of the requesting state. Although that is not the issue here, what he said is apposite to the argument which does arise. In paragraphs 53 – 55 he said:
"53. In Office of the King's Prosecutor, Brussels v Cando Armas … para 30, I said that the judge need not concern himself with the criminal law of the requesting state when he is asked to decide under section 10(2) whether the offence specified in the Part I warrant is an extradition offence. Miss Montgomery said that this was not so, but I believe that what I said there was accurate. The system on which the European arrest warrant is based depends on co-operation between the judicial authorities of member states. Any scheme which retained scrutiny of the text of the foreign law as a requirement would be bound to give rise to delay and complexity – the very things that in dealings between member states the Framework Decision was designed to eliminate. In my opinion section 2(4)(c) does not require the text of the foreign law to be set out in the Part I warrant. Article 8(1)(d) of the Framework Decision states that among the information that the European arrest warrant must contain is "the nature and legal classification of the offence". Section 2(4)(c) requires no more than that.
54. Consistent with the Framework Decision, the judge need not examine the text of the foreign law in order to decide whether the conditions set out in section 64(3) are satisfied. Section 2(4)(c) is not to be read as requiring material to be included in a Part I warrant, not mentioned in the Framework Decision, that the judge does not need when he is conducting that exercise. A warrant which contains the statements referred to in section 2(2) is a Part I warrant for all purposes. So I do not think that it is possible to spell out of the language of the statute the requirement for which Miss Montgomery contends."
51. Although Lord Hope couches his language in terms that the judge "need not concern himself" with the criminal law of the requesting state, the thrust is that he should not do so, except in true abuse of extradition process cases, and should not do so, not as a matter of discretion, but as a matter of jurisdiction. Such inquiry is simply not his task. The effect of the Framework Decision, and the interpretation of the 2003 Act Part I, go further than the traditional assumption of good faith between sovereign states and a need to accommodate different national legal processes.
52. The circumstances of this appeal illustrate the point, and the way in which the contrary view would undermine the legislative intention. The context is an extradition case, pursuant to what is intended to be a simplified decision-making process in an area of mutual recognition of judicial decisions in criminal matters. There is a disagreement among the Greek lawyers about what the Greek Code of Criminal Procedure requires. It would be quite extraordinary for the District Judge to hear evidence from competing experts on Greek law, including the Prosecutor of the requesting state, so as to rule as a matter of fact on what Greek law was, then to find whether in fact the actions of the Prosecutor had breached whatever the law was found to be, then to rule on the effect on the validity of the warrant of a breach of its Code, each of which might be quite uncertain in Greek law, and then to rule on whether that caused the EAW to be invalid as a matter of English law implementing the Framework Decision. And if extradition then ensued, the matter would be dealt with by the Greek Courts who would be unlikely to regard the views of the English Courts on Greek law as of more than passing interest. If it did not ensue, the Greek Courts would never have the chance to put it right.
53. The District Judge, on this basis and he recognised this was probably right, should not have considered evidence about Greek domestic law. If he had ruled that on the facts that there had been a breach of domestic law and that that in Greek law invalidated the domestic warrant, he would have trespassed beyond his functions. It follows from Dabas that even if he concluded that the domestic warrant was invalid in Greek domestic law, he had no jurisdiction to rule that the EAW itself was thereby invalidated."
Mr Summers' essential argument is that there is nothing in that case to the effect that section 14, Article 5 and/or Article 8 prohibit inquiry into whether a relevant limitation period in the requesting state has expired and to act upon a positive finding that it has. Whilst, strictly speaking, that is so, it does not, in my judgment, negate the proposition (to be deduced largely from cases where the issue of abuse has either been raised or has been considered the legal umbrella under which the issue of limitation should be debated if it is to be debated at all) that the domestic courts should be extremely reluctant to engage in evaluating the competing arguments about the local law of limitation in the requesting state. It is always wise never to say 'never', but the circumstances when it is justified must surely be truly exceptional.
At all events, I do not consider that the District Judge needed to consider the issue in this case beyond the reasons he gave in the passage of his ruling set out in paragraph 33 above. Furthermore, I do not consider that his tentative expression of view on the position under Spanish law gives the Appellant any support in this appeal. In my view, this ground fails.
I should record that Mr Caldwell also referred me to the decision of the Supreme Court in Zakrzewski v The Regional Court in Lodz, Poland [2013] UKSC 2 and Mr Summers referred me to the decision of the House of Lords in Caldarelli v Court of Naples, Italy [2008] 1 WLR 1724. Neither, in my judgment, advanced the arguments in this particular context significantly further than the authorities to which I have already referred and I do not think I need make further reference to them.
Ground 4
The Appellant's case (which was advanced by way of his own evidence before the District Judge) is that following his arrest in June 1991 he was detained incommunicado during which he was repeatedly interrogated by the Spanish police and ill-treated to an extent that he contends amounted to torture. His evidence was that he was subjected to the following:
1. being tied to a chair with his hands behind his back and punched in the stomach with force;
2. having pencils placed in the webs between his fingers and squeezed to cause intense pain;
3. having a cigarette stubbed out in an open wound on his face;
4. being questioned for hours at a time whilst tied to a chair;
5. being hit on the back of his head with the flat of the hand and with books;
6. being deprived of food and sleep; and
7. being taken into a forest and made to dig (what he was told) was his own grave, and told that he was going to be killed.
His account is that on the first and third days of his incarceration, 6 and 8 June 1991, he signed incriminating statements, the second having been signed in the presence of a state-appointed lawyer (with whom he was not permitted to communicate). He says that after these statements had been signed the torture ceased.
I will say a little more about his allegations in this regard shortly, but it is to be noted that Mr Summers says that, whilst, as he would say, problems remain in Spain, it is not suggested by the Appellant, nor has he ever suggested, that the "international materials disclose any real risk of torture for [him] in Spain now." If surrendered, the Appellant would not be in the custody of the Guardia Civil. However, it is his case that at the material time there was a prevalent practice of ill-treatment of terrorist suspects, the existence of such practice being acknowledged by reputable sources such as Amnesty, Human Rights Watch and the Council of Europe Committee for the Prevention of Torture ('the CPT'). The District Judge's attention was drawn to a CPT report dated March 1996 which spoke of this practice. He took this into account in reaching certain findings of fact on the Appellant's account.
Before dealing with those findings, again it should be noted that the District Judge did not consider that it was an area he ought to enter. His general approach, having referred to Konuksever v The Government of Turkey (see paragraph 36 above), was expressed as follows:
"Accordingly, if proof of torture is not, in itself, an automatic bar to extradition then the district judge at the extradition hearing needs to consider very carefully whether the court should undertake any inquiry of such an issue. Obviously, any court enquiry as to whether there has been torture in the requesting state is likely to be better undertaken by a court in the requesting state, providing of course, that court is willing to undertake such an enquiry. In this case, for example, the alleged torturers, the interviewing officers, the doctors who examined [the Appellant] and other potential witnesses are all in Spain and it would be open to a Spanish court to hear evidence from such persons and [the Appellant] and then to decide whether [the Appellant's] allegations are true or false. It is unlikely that any court in this jurisdiction, (particularly if, as in this case, only [the Appellant] gave live evidence) could come to any conclusion other than the court could not rule out the possibility that he had been tortured. Such a finding has little value."
Having expressed that view, he did go on to make certain findings against the background set out in the following paragraph of his decision:
"In case a higher court should conclude that there is a duty on the district judge to make a finding on whether or not [the Appellant] was tortured then what follows is my decision on that issue. For all the reasons given above and, in particular, as the [Judicial Authority] has not participated (it could have done, but in my view correctly declined to do so as the issue of whether [the Appellant] was tortured is a matter for Spain to resolve) and therefore it follows my decision is made on limited material without the benefit of the [Judicial Authority's] contribution."
The following extract from the ruling of the District Judge will indicate the nature of the evidence he received on this issue, both from the Appellant and by reference to certain medical records:
"63. … Following [the Appellant's] arrest early on 6th June 1991 he was seen by a doctor at 5 pm that afternoon. [The Appellant] told the doctor he had "received blows to the head with an open hand, and also by foot. Also refers to abdominal contusion from a fist and having pencils pressed into the web of left hand." On examination he had injuries consistent with that history (although strangely there does not appear to have been an examination of his stomach so we do not know whether there was any evidence of a bruise there) and, in particular in relation to the 'pencil treatment' the doctor found 'increased local heat and erythema (superficial reddening of the skin caused by dilation of the blood capillaries, as a result of injury or irritation) in the web of the 4th finger of the left hand, referring to paraethesis (abnormal sensation, especially 'pins and needles' caused by pressure on or damage to peripheral nerves) of the finger. [The Appellant] was seen again the next day (7th June) at 8.30 pm when he complained he had been hit again with a hand to the back of his head. No signs of new injury were found. In relation to the paraethesia in the 1st and 4th fingers of the left hand there were no signs of inflammation. [The Appellant] was seen again on the next two days but he makes no complaint of having been mistreated and no new injuries were detected, but he continued to complain about the persistent paraethesia of his fingers.
64. That evidence shows he was complaining to the doctor of mistreatment by the police and whereas some of his injuries might be consistent with a forceful arrest that seems unlikely in relation to the 'pencil treatment injuries.' Further there is a complaint of further mistreatment the next day, he claims he was hit with a flat hand to the back of his head whilst in police custody, although in that respect there are no supporting medical findings."
The District Judge then referred to evidence of further occasions when the Appellant complained about his treatment in custody and reached the following conclusion:
"68. In the light of all this material I acknowledge [the Appellant] (i) complained to the doctors, when examined, that he had been mistreated by the police on the first and second days of his detention, (ii) when he made his statement before the court on 10th June 1991 it included allegations of his mistreatment by the police, (iii) there was medical evidence which lent support to his claims, in particular, in relation to the 'pencil treatment,' (iv) no one has suggested any innocent explanation that might account for the 'pencil treatment injuries.'
69. Given (i) the CPT reports, (ii) [the Appellant's] contemporaneous complaints, (iii) the evidence of [the Appellant's] injuries, as noted by the doctors at the relevant times and (iv) [the Appellant's] evidence to this court I am persuaded (on such evidence as I have heard) that it is more likely than not [the Appellant] suffered what I have been calling the 'pencil treatment.' I am not persuaded he was tortured."
The District Judge encapsulated what he saw as "torture" in the following way:
"I am not convinced, even if [the Appellant] suffered as he claims, it would be characterised as torture or even severe ill-treatment. Obviously, a deliberate hard punch to the stomach whilst [the Appellant] "was tied to a chair" …, the pencil treatment …, having a cigarette stubbed out in an open wound on his face … are all examples of deliberate assaults intended to cause pain, but whether such conduct 'causes very severe and cruel suffering' is debateable. Nevertheless, if it occurred it was manifest mistreatment to which he should not have been subjected."
Leaving aside other issues, Mr Summers submitted that the District Judge's conclusion that the "pencil treatment" was not torture was unsustainable. I did not understand Mr Caldwell to disagree. I also do not, with respect, understand how such an activity could not be characterised as torture. Whilst there are plainly degrees of ill-treatment and in so far as there may be a scale of seriousness of torture, it is, of course, possible to imagine what many would regard as worse forms of torture than this, but torture this must surely have been.
The District Judge did not make positive findings on the other allegations made by the Appellant, but equally did not apparently reject them. For the purposes of the appeal, I will assume that the Appellant was the victim of ill-treatment during his detention (designed to secure admissions from him) such that his treatment should be characterised as torture. Mr Summers recognizes, however, that that assumption will not be sufficient for this court to conclude (as his original Ground 5 alleged) that there would be a "flagrant violation of Article 6 … owing to the prospective use of evidence obtained by torture": see, e.g., Krolik v Several Judicial Authorities in Poland [2012] EWHC 2537 (Admin) and Sanchez v The Second Section of the National High Court of Madrid, Spain [2013] EWHC 2264 (Admin). On that basis, Ground 5 was not pursued.
However, it is asserted that it is unconscionable – and abusive - for a state whose officials have deliberately tortured a person in their custody to seek to use the EAW system (founded on the principles of mutual trust and international cooperation) to seek to gain further custody over that individual in (and to continue) the same proceedings. This is Ground of Appeal 4. Mr Summers submits that this would be a "tainted prosecution" which would offend the rule of law: cf. R v Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 AC 42.
Mr Summers referred to Rangzieb Ahmed, Habib Ahmed v The Queen [2011] EWCA Crim 184, where the Court of Appeal Criminal Division summarised the nature of the jurisdiction upon which he seeks to draw in this part of his argument. At [24] Hughes LJ, as he then was, said this:
"There is no doubt about the jurisdiction to stay for abuse of process. It applies where the trial process will be internally unfair …, but it is not limited to such cases. It may be exercised also where, by reason of gross executive misconduct manipulating the process of the court, the defendant has been deprived of the protection of the rule of law and it would as a result be unfair to put him on trial at all. That was clearly established by [Bennett] and R v Mullen [1999] 2 Cr App R 143. In both cases the defendant had been kidnapped abroad and brought into this jurisdiction by an unlawful rendition, to which the British authorities were party. In both those cases, however, there was a clear link between the abuse of power on the part of the executive/prosecution and the trial; the trial was the very object and result of the unlawful abuse of power. Thus in those cases it is properly said that not only is the misconduct of the executive an affront to the public conscience, but also, and critically, that the trial itself is such an affront. The first is not a sufficient ground for a stay, but the second is; the jurisdiction does not exist to discipline the police or other executive arms of the State (although of course it will incidentally do so), but rather to protect the integrity of the processes of justice. In R v Grant [2005] EWCA Crim 1089; [2005] 2 Cr App R 28 at 409 the police had deliberately and unlawfully eavesdropped on and recorded privileged conversations between a suspect and his lawyer. This court held that a stay should be imposed in consequence even without there being any product of the listening giving rise to evidence relied on at trial. We are bound by that decision, albeit that it appears to represent some extension of the jurisdiction, but we observe, as did the judge in the course of argument in this case, that even without use of the material in the trial there was a clear link between a suspect's right of private access to legal advice when facing criminal charges and his subsequent trial on those charges. Indeed, the court in that case described the behaviour of the police as an affront to the integrity of the justice system (paragraph [54] – our emphasis). Moreover, that description is unsurprising since the actions of the police can only have been deliberately unlawful and there existed no even colourable claim to a necessity to balance competing considerations of public interest. We also accept that the jurisdiction to stay may, in certain circumstances, be invoked where to try a defendant would involve a breach by this country of a specific international obligation not to do so: see for example R v Uxbridge Magistrates Court ex p Adimi [2001] QB 667, considered in R v LM & others [2010] EWCA Crim 2327. In those cases also, however, there was the clearest link between the trial itself and the international obligation; to undertake the former involved a direct breach of the latter. It does not at all follow that in every case in which it is suggested that there has been a breach by the UK of an international obligation in respect of an individual, that individual becomes exempt from prosecution, and (if guilty) punishment, for an offence which he has committed."
In that case Hughes LJ articulated (at [25]) the case that Rangzieb Ahmed sought to advance in this way:
"The first limb of Rangzieb's case on the application to stay was that the UK had connived in this case, as in Bennett and Mullen, at his unlawful rendition to this country by the Pakistani authorities for the purpose of putting him on trial here. If that had been so, it would indeed provide a ground for staying the prosecution. There would be a plain connection between an international wrong, to which the British authorities were party, and the trial."
Mr Summers contends that, by analogy, there is a ground for intervention by the domestic court in this case because there was an international wrong (namely, the torture) perpetrated to extract a confession with a view to putting the Appellant on trial. Whilst that case involved an alleged unlawful rendition, the same principles, it is said, should apply to this case. He also said that what was advanced as the second limb of Rangzieb Ahmed's case (see [26]-[49]) ought also to apply and that this is a clear case of abuse (because of the torture) and the extradition should, accordingly, be halted. It is not entirely clear to me what distinction there is between the first and second limbs in Ahmed for the purposes of the arguments in this case: it is essentially a question whether the established torture is sufficient to taint the prosecution.
In this overall connection Mr Summers drew attention to what he said was a lack of frankness on the part of the prosecution and the Spanish judge about what had occurred during the Appellant's interrogation.
In the same document as that referred to in paragraph 28 above, the judge said this:
"Torture allegations made by the counsel for the defence are not surprising. Such allegations are usually made in this kind of proceedings. We have not been able to read the requested person's statement that was forwarded to us, since it has been transcribed in English. What we can say is that we have reviewed the whole proceedings and we have verified that although he was held incommunicado during his arrest, this incommunication was controlled at all times by the pre-trial judge. The requested person was assisted by legal aid when making his statements before the police and before the court. Pursuant to Spanish procedural law any detainee held incommunicado must be assisted by legal aid and not by a lawyer of his choice. There are no complaints from the requested person about ill-treatment during his detention, nor during his examination by the forensic surgeon on 10 June 1991 when he was brought to the Central Pre-Trial Judge, nor when he made a statement before this Judge. We have no evidence of any later complaints for ill-treatment lodged by him."
The statement of the Appellant to which the judge refers runs to some 39 single-spaced paragraphs and 8 pages and sets out his current account of the events of June 1991. The statement suggests that he was not taken before a judge until 10 June which does appear to be borne out by what the judge said. The Appellant, however, suggests that he had no opportunity to consult a lawyer before signing the "confessions" which means that he was not "assisted" before he did so as the judge asserts. For my part, I cannot see that this affords any basis for suggesting that the judge had not been open with the District Judge. It rather depends on whether the word "assisted" in the translation conveys accurately the judge's meaning. If, for example, what was meant was that any confession was made simply in the presence of a state-appointed lawyer (and not a lawyer of the detainee's choice), which appears to have been the practice at the time, then, whilst that might raise other issues, it does not raise any question of misinformation being given by the judge to the District Judge.
The suggestion that there were no complaints by the Appellant about his treatment would, taken simply as it stands, be at variance with the evidence. However, there are two paragraphs in the same document from the judge, following a very short paragraph detailing the circumstances in which he was arrested, where the judge records the occurrence of the medical examinations on 6 June and 10 June when the Appellant did complain about his treatment. The judge also recorded the results of the examination of the doctor which, at least to some extent, confirmed the Appellant's account. What the judge says is that the Appellant did not complain to the judge before whom he appeared whereas the Appellant says that he did. The mere fact that there is a difference in view about this (which no court in England or Wales could resolve) does not mean that the Spanish judge is giving misleading information to the District Judge.
Subject to the submissions to the contrary made by Mr Summers (see paragraph 63 below), the focus of a "tainted prosecution" must be upon the conduct of the prosecuting authority, not the judicial authority. Mr Summers draws attention to what the prosecuting authority said in response to the request for further information and suggests that it is less than frank ("outright untruthful and misleading" was the expression used in his Skeleton Argument) and betrays a preconceived notion about the Appellant's allegations:
"With respect to allegations of torture it must be noted that these are the classic defence allegations made for Basque terrorist organization members who are in prison. It should be noted that the Spanish Public Prosecutor's mission as well as the Crown Prosecution Service's mission is to ensure the defence of legality and the defence of citizens' rights as well as to ensure full respect and integrity of those rights. Both not only do not consent to crimes but have the mission to prosecute every crime, even those crimes that might have been committed in cases of ill-treatment of detainees. That said, nowhere in the proceedings is there any evidence whatsoever to support ill-treatments, especially not during the statement given before the pre-trial judge. In our legal system it is the pre-trial judge who directs the investigations and examinations. Furthermore, it is up to the pre-trial judge to ensure full respect of the [accused's] individual rights throughout the investigation stage.
The Public Prosecutor assists in the investigations and plays an active role. The Public Prosecutor neither is aware of any torture or ill-treatment of detainees nor would he have consented to torture or ill-treatment of detainees, acting in the same way as the CPS."
Mr Caldwell was inclined to agree that this was less dispassionate than it might have been and there can be no doubt that the suggestion that "nowhere in the proceedings is there any evidence whatsoever to support ill-treatments" is plainly incorrect. But taking this adverse criticism of what is said by the prosecutor at its highest, does it afford a basis to find bad faith on the part of the prosecutor or that it evidences the proposition that the prosecution is "tainted"? Mr Caldwell contends that there is no evidence that the prosecutor had prior knowledge of the intentions of police officers to ill-treat the Appellant or to try to obtain evidence by means of ill-treatment or that the Prosecutor connived or gave any encouragement to such conduct. There is, he says, a clear denial of complicity and the decision of the prosecutor to continue proceedings where there has been a complaint of torture does not in itself sustain a conclusion that there is an abuse of process by the Spanish state. That, he says, is a matter for the Spanish courts to determine. He also emphasises that the issue for consideration is the conduct of the prosecuting authority, not the police. This is brought into relief by Symeou (see paragraph 39 above). The following two paragraphs of the judgment of Ouseley J are relied upon:
"33. In our judgment, the reason why these two strands to the abuse argument cannot succeed is this. The focus of this implied jurisdiction is the abuse of the requested state's duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727 and the Tollman case [2007] 1 WLR 1157 concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state.
34. The abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial."
Mr Summers replies to those arguments by making a number of points about Symeou. First, contrary to the approach in Symeou, he submits that there is no scope for the division of "the state" into police, prosecutor and judge: they are all, he would say, emanations of the state and it is impossible to divide them in the way suggested. He draws attention to Ahmed and says that that case involved police misconduct, but nonetheless would have engaged the abuse powers of the English court if the facts had been established. Second, he says, on the facts of this case, that the police were not acting in isolation because the torture took place in the context of the interrogation and the CPT materials suggest that, at the material time, there was a systemic practice of torture. Third, he says that Symeou was not concerned with torture. Fourth, Symeou was concerned with police conduct relating to witnesses and not to the treatment of the accused in that case. Finally, he says that Symeou was decided before Ahmed and, presumably, contends that it should be read subject to Ahmed.
In the first place, in my view, some caution needs to be shown before applying any phraseology used in Ahmed to the extradition jurisdiction. That was a case in which the Court of Appeal Criminal Division was reviewing the correctness of the decision of a judge sitting in the Crown Court about whether to stop the case on the grounds of abuse. It was not addressing directly any of the normal issues that arise in extradition proceedings. Secondly, and allied to that first point, Symeou was concerned directly with the extradition process and what the court said, albeit not directly in the context of torture, was undoubtedly in point by analogy in the context of torture allegations: I cannot see that the distinction between the two types of case is material for present purposes. Third, in my judgment, the division of the organs of the Spanish State as between the police, prosecutor and judiciary is entirely legitimate: they may each be an emanation of the state, but each is separate and distinct and the distinction maintained in Symeou is a valid distinction for these purposes.
Conclusion
However the issues raised by Mr Summers on the Appellant's behalf are articulated, they are answered by the proposition that the essential framework by which this court determines its extradition jurisdiction is to show mutual trust for the processes of those countries with which it has extradition arrangements and, of course, to assume that Convention rights will be upheld in requesting states. Whatever the history may have been in this case, it is recognised that the Appellant will not be subject to torture on his return to Spain if it is ordered and that he will receive a trial meeting Article 6 requirements. In that latter context the natural assumption is that the Spanish court will, if any disputed confession is relied upon by the prosecution, subject the circumstances in which it was given to appropriate scrutiny and, if shown to have been obtained through torture, to exclude its admissibility. In this case it cannot be ignored, as the District Judge observed, that if the primary police evidence is accepted the Appellant and his accomplices were caught "red-handed". However, all the relevant protections against the use of tainted evidence exist within the Spanish legal system such that they can be deployed by the Appellant should he choose to do so.
The same broad approach applies to the question of limitation for the reasons I have given.
The District Judge was, correctly in my view, very reluctant to become involved in some of the fact-finding missions upon which he was invited to embark. To my mind, there is plenty of authority (for example, in the guise of Battistini and Symeou) which would have justified refusing to embark upon those missions as a matter of principle. There remains in most cases the pragmatic consideration (which also informs the principle) of the quality of evidence that could be received: half the story given orally by one side and half provided in writing on the other (with no full disclosure) is hardly a satisfactory basis for a finding of fact that is ordinarily far more conveniently made in the courts of the jurisdiction where the issues originally arose.
In my judgment, the grounds of appeal do not succeed and the appeal must be dismissed. | 2 |
OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 22 January 2015 ( )
Case C‑519/13
Alpha Bank Cyprus Ltd
v
Senh Dau Si,
Alpha Panareti Public Ltd,
Susan Towson,
Stewart Cresswell,
Gillian Cresswell,
Julie Gaskell,
Peter Gaskell,
Richard Wernham,
Tracy Wernham,
Joanne Zorani,
Richard Simpson
(Request for a preliminary ruling from the Anotato Dikastirio Kyprou (Cyprus))
‛Judicial cooperation in civil matters — Service of judicial and extrajudicial documents in civil or commercial matters — Regulation (EC) No 1393/2007 — Article 8 — Refusal to accept a document — Requirement to use the form set out in Annex II to the regulation to inform an addressee of his right to refuse to accept a document — Validity of service in the event of failure to use the form — Possibility of service subsequently through the addressee’s lawyer’
I – Introduction
1.
The request for a preliminary ruling was submitted in connection with seven cases concerning the balance on a mortgage loan brought by Alpha Bank Cyprus Ltd (‘Alpha Bank’), a company trading in the banking sector, against purchasers of immovable properties and against Alpha Panareti Public Ltd, another company, which had guaranteed that loan. ( )
2.
That request concerns the interpretation of Article 8 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000. ( )
3.
Article 8 of that regulation, entitled ‘Refusal to accept a document’ states that the addressee of a document must be informed, ‘using the standard form set out in Annex II [to the Regulation]’, that he may refuse to accept the service of that document if it is not written in, or accompanied by a translation into, a particular language.
4.
The request for a preliminary ruling concerns inter alia whether or not that standard form is obligatory and the consequences of failing to use it as regards the service of a document.
II – Regulation No 1393/2007
5.
Article 8 of the regulation, entitled ‘Refusal to accept a document’, provides:
‘1. The receiving agency shall inform the addressee, using the standard form set out in Annex II, that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not written in, or accompanied by a translation into, either of the following languages:
(a)
a language which the addressee understands;
(b)
the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected.
2. Where the receiving agency is informed that the addressee refuses to accept the document in accordance with paragraph 1, it shall immediately inform the transmitting agency by means of the certificate provided for in Article 10 and return the request and the documents of which a translation is requested.
3. If the addressee has refused to accept the document pursuant to paragraph 1, the service of the document can be remedied through the service on the addressee in accordance with the provisions of this Regulation of the document accompanied by a translation into a language provided for in paragraph 1. In that case, the date of service of the document shall be the date on which the document accompanied by the translation is served in accordance with the law of the Member State addressed. However, where according to the law of a Member State, a document has to be served within a particular period, the date to be taken into account with respect to the applicant shall be the date of the service of the initial document determined pursuant to Article 9(2).
…’
III – The dispute in the main proceedings and the questions referred for a preliminary ruling
6.
The respondents in the seven appeals before the referring court are (i) purchasers of immovable properties situated in the Republic of Cyprus, and (ii) the vendor of those properties, Alpha Panareti Public Ltd. ( ) The properties were purchased by means of a mortgage loan granted by Alpha Bank, which has brought actions before the courts in Cyprus for payment of the balance of that mortgage loan against the purchasers and the vendor, namely Alpha Panareti Public Ltd, which had guaranteed the loan.
7.
Since the purchasers ( ) were permanently resident abroad, Alpha Bank obtained, following an ex parte application, ( ) in each of the actions at first instance an order allowing a true copy of the document initiating the proceedings ( ) and the notice attached to that document, ( ) and of a translation of each, to be served outside the geographical jurisdiction of the court (‘the contested order’). Each of those contested orders provided, moreover, that those documents should be served in accordance with the rules laid down in Regulation No 1393/2007.
8.
The following documents were served on each of the purchasers in England:
—
a true copy of the document initiating the proceedings and the attached notice, in Greek and English;
—
a true copy of the contested order in Greek only, and
—
a true copy of the affidavit given by the translator attesting that she had made a faithful translation of the original documents.
9.
The respondents in each of the seven cases entered an appearance under protest at first instance and applied for an order for the annulment or setting aside of the contested orders and of the service itself. They contended that, in pursuance of Regulation No 1393/2007 and of the Cyprus Code of Civil Procedure, other documents should also have been served, namely, in each case:
—
a copy of the ex parte application;
—
a translation into English of the contested order;
—
the standard form set out in Annex II to Regulation No 1393/2007, in accordance with Article 8 of that regulation, and
—
an explanatory letter concerning the documents being served.
10.
Alpha Bank argued before the court of first instance that, as the respondents had been apprised of the existence of the action and its subject-matter and of the timetable for the taking of measures on their part, they could not argue improper service. In the view of Alpha Bank, the respondents had applied to have the service set aside in a bid to avoid service.
11.
The court of first instance held in each of those seven cases that the application was well founded. It found that the failure to serve all the necessary documents and the English translations, especially a translation of the contested orders, infringed the Cyprus Code of Civil Procedure and Regulation No 1393/2007, as it deprived the addressee of the documents of the opportunity to obtain knowledge of their contents. It also found that that regulation had been infringed because the standard form set out in Annex II to that regulation, which would have informed the respondents of their right to refuse to accept the contested orders in Greek without the necessary accompanying English translation, had not been served on them. The court of first instance, on those grounds, annulled the service of the document initiating the proceedings, the attached notice and the contested order in each of those cases.
12.
Alpha Bank lodged an appeal challenging each of the seven judgments before the referring court.
13.
The referring court held, in a separate judgment, that the court of first instance had erred in the part of the seven judgments at first instance that related to annulling service on grounds of irregularity under national law, as, in the circumstances of the main proceedings, any irregularities could have been remedied, in keeping with the spirit of Regulation No 1393/2007. According to that court, ‘[n]otwithstanding the numerous problems identified in the way in which service was effected, it is not apparent from the documents sent for service that the respondents were actually misled, as they entered an appearance before the court at the appointed time. Furthermore, the respondents did not specify how they had allegedly been misled or, more importantly, the repercussions on them of their possibly having been misled’.
14.
The referring court stated that it would not annul service unless the Court were to find that service using the standard form set out in Annex II to Regulation No 1393/2007 was necessary in every case of service of documents on the basis of that regulation and that failure to serve that form could not be remedied and would lead to service being invalid.
15.
In those circumstances, the Anotato Dikastirio Kyprou (Cyprus) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Is service of the standard form pursuant to Regulation No 1393/2007 necessary in every case or can there be exceptions?
(2)
If it is considered that service is necessary in every case, does the omission in the present case constitute a reason why service is invalid?
(3)
If not, can it be effected, in keeping with the spirit of Regulation No 1393/2007, by service on the lawyer acting for the respondents appearing under protest, who is under an obligation vis-à-vis his clients to accept service, or must service be effected anew under the procedure provided for in Regulation No 1393/2007?’
IV – Procedure before the Court
16.
Alpha Bank, the respondents, the Cyprus, German, Greek, Spanish and Austrian Governments and the European Commission submitted written observations. Alpha Bank, the respondents, the Cyprus, German and Spanish Governments and the Commission presented oral argument at the hearing on 27 November 2014.
V – Analysis
A – First question
1. Arguments of the parties
17.
In its first question, the referring court asks in essence whether Article 8 of Regulation No 1393/2007 must be interpreted as meaning that the receiving agency ( ) must always use the standard form set out in Annex II to that regulation when effecting service of the document to be served on the addressee.
18.
The respondents contend that Regulation No 1393/2007 does not contain any exception to the right to receive the standard form set out in Annex II thereto. They note that the EU legislature intentionally provided for that form in order to guarantee and protect the fundamental rights of addressees to receive information and a fair hearing. Alpha Bank contends, on the contrary, that the standard form in question has no purpose where the document initiating the proceedings has been translated into the language of the receiving agency.
19.
The Greek Government is of the view that neither Article 8 nor any other article of Regulation No 1393/2007 provides for an exception which would allow the receiving agency to dispense with use of the standard form as required by Article 8(1) of that regulation. According to the Spanish Government, the wording of Regulation No 1393/2007 leaves no room for doubt. Article 8 states that the information it requires must be provided using the standard form set out in Annex II to that regulation. The Austrian Government is also of the view that service must be effected using the standard form in all cases.
20.
According to the Cyprus Government, although, in principle, use of the standard form set out in Annex II to Regulation No 1393/2007 is obligatory in every case in which a judicial document is served, the Court would appear to have introduced a derogation from that general obligation in Weiss und Partner (C‑14/07, EU:C:2008:264) where the addressee is familiar with the content of the document being served.
21.
So far as the Commission is concerned, the standard form in question has an informative purpose and is required where service of the judicial document is effected in a language which the defendant does not understand. Consequently, in its view, where service of the document has been effected in one of the languages provided for in Article 8(1) of Regulation No 1393/2007 the standard form has no purpose and its use is not required. It adds that the addressee would not have had the right to refuse to accept the document in the present case if the standard form had been attached to the documents to be served.
22.
So far as the German Government is concerned, the receiving agency is required to attach the standard form set out in Annex II to Regulation No 1393/2007 only where a document, within the meaning of Article 8(1) of that regulation, has not been translated into one of the languages provided for in Article 8(1)(a) and (b) of that regulation. The obligation to inform laid down in Article 8(1) is an obligation ‘to conduct a special examination, imposed on the receiving agency’, which would carry out its own investigation using its particular expertise as an authority or court. That Government therefore contends that the receiving agency must determine in each case whether the addressee referred to in Article 8(1) of Regulation No 1393/2007 should be informed of his right to refuse to accept a document by means of the standard form. In its view, the contested order constitutes a document within the meaning of Article 8(1) of Regulation No 1393/2007, since it cannot be excluded, in the absence of a translation, that its content may be essential from a procedural point of view, which would justify an autonomous obligation on the receiving agency to provide information in pursuance of that provision.
2. Assessment
23.
To my mind, the scope of Article 8 of Regulation No 1393/2007 is clear and unambiguous. Use of the standard form set out in Annex II to that regulation is required in all cases of service of judicial documents, ( ) without exception, irrespective of the language in which the document to be served is drafted and whether or not it is accompanied by a translation. ( )
24.
First, the wording ( ) of Article 8(1) of Regulation No 1393/2007 requires clearly and without exception that the receiving agency should use the form in question when effecting service of a document to be served.
25.
Article 8(1) of Regulation No 1393/2007 therefore provides no opportunity for the receiving agency to decide whether or not that form should be used depending on the language of the document to be served, or languages which are understood by the addressee — information which in any event is often not available to it — or the official languages of the Member State in question, or whether or not a translation into those languages is attached to that document.
26.
The phrase ‘if it is not written in, or accompanied by a translation into, either of the following languages’ applies not to the use of the form but merely to the addressee’s right to refuse to accept the document.
27.
The standard form set out in Annex II to Regulation No 1393/2007 must always be used therefore for the service of a document to its addressee, even if it may prove to be redundant in view, for example, of the language skills of the addressee or, more specifically, where the document to be served is written in the official language of the Member State addressed. I would add that, even in the latter case, the routine obligation to attach that form, which is only one page, in the official language of the Member State addressed or one of the official languages of the place where service is to be effected does not, to my mind, constitute an obligation that is unduly excessive.
28.
Secondly, the standard form set out in Annex II to Regulation No 1393/2007 and the related obligation to use it constitute an innovation in relation to the earlier regulation, namely, Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. ( ) That innovation reflects, in my view, the intention of the EU legislature to improve efficiency and speed ( ) in the transmission of judicial and extrajudicial documents between Member States whilst respecting the addressee’s rights of defence. ( )
29.
Obligatory use of that form is designed to prevent the occurrence of unfortunate situations, such as in the present case, where a one-page document, namely a true copy of the contested order, written only in Greek and therefore not in a language which would (or could) be understood by the respondents or in the official language of the State addressed (English), is included amongst a number of other documents written in Greek, all of which, apart from the contested order, are accompanied by a translation. ( )
30.
In my view, receiving agencies do not therefore have any discretion as regards use of the form in question. ( ) An independent and uniform interpretation of Regulation No 1393/2007 means, moreover, that the standard form in question must always be attached whenever service of a document is effected. ( ) That regulation applies to all the Member States of the European Union, ( ) with documents to be served potentially in over 20 languages. Consequently, it seems to me impossible, even from a purely practical point of view, for receiving agencies to determine which documents to serve and whether translations exist in every case.
31.
In its report of 4 December 2013 to the European Parliament, the Council and the European Economic and Social Committee on the application of Regulation No 1393/2007 ( ) (‘the report’) the Commission mentions the need to use the standard form set out in Annex II to that regulation in cases where the document to be served is in the language of the Member State addressed and where, therefore, the addressee cannot validly refuse service under Article 8(1)(b) of that regulation. The report states that attaching the standard form in such circumstances might mislead the addressees into thinking that they do have the right to refuse.
32.
However, I consider that the standard form set out in Annex II to Regulation No 1393/2007 contains very clear guidance for the addressee of the document to be served and that its precise wording is not likely to mislead. That form expressly provides that the addressee may ‘refuse to accept the document if it is not written in or accompanied by a translation into either a language which he understands or the official language or one of the official languages of the place of service’. ( ) The right to refuse is not therefore linked in any way to the presence of the standard form in question. ( )
33.
In the light of those considerations, I consider that Article 8 of Regulation No 1393/2007 must be interpreted as meaning that use of the standard form set out in Annex II to that regulation when effecting service on the addressee of the document to be served is required in all cases without exception, irrespective both of the language in which the document to be served is written and whether or not it is accompanied by a translation into a language understood by the addressee or into the official language of the Member State addressed or, if there are several official languages in that Member State, into the official language or one of the official languages of the place where service is to be effected.
B – Second and third questions
34.
In its second and third questions, raised in case the first question is answered in the way I suggest, the referring court asks the Court, first, whether failure to use the form constitutes a reason why service of the document to be served is invalid and, secondly, how that failure may be remedied.
35.
Regulation No 1393/2007 says nothing about the legal consequences which flow from failure to use the standard form set out in Annex II to that regulation. A fortiori, it does not provide that such failure constitutes a reason why service of the document to be served is invalid. ( ) Since Regulation No 1348/2000 is silent concerning the consequences of service in a language other than one of those it provides for in the same way as Regulation No 1393/2007 is silent concerning failure to use the standard form, the case-law relating to the former of those two regulations contains valuable information in that regard.
36.
In paragraph 51 of Leffler (C‑443/03, EU:C:2005:665) the Court held that, since Regulation No 1348/2000 (which Regulation No 1393/2007 replaced) did not prescribe the consequences of certain facts, it was for the national court to apply, in principle, its national law while taking care to ensure the full effectiveness of EU law. The Court added that the regulation’s silence might ‘lead [the national court] to refrain from applying, if need be, a national rule preventing that or to interpret a national rule which has been drawn up with only a purely domestic situation in mind in order to apply it to the cross-border situation at issue’. ( )
37.
Moreover, in paragraph 65 of the same judgment, the Court held that, in order to uphold the effectiveness of the regulation, it was important for the national court to ensure that the rights of the various parties to the case are accorded maximum, and balanced, protection. ( )
38.
As regards the rights of the addressees of a document to be served, it is apparent from settled case-law that the objectives of efficiency and speed set out in Regulation No 1393/2007 cannot be attained by undermining in any way the rights of defence of those addressees, which derive from the right to a fair hearing guaranteed by the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, ( ) which means inter alia that they must have ‘sufficient time to prepare [their] defence’. ( )
39.
As regards the rights of the serving party and the objectives of efficiency and speed set out in Regulation No 1393/2007, I consider that they should not be compromised for purely formal reasons that would not affect the rights of defence of the addressees.
40.
That would be the case if failure to use the standard form in question led to service of a document being invalid where it could be proved, for example, that the addressee of that document understands the language in which it is written or the document is written in the official language of the State addressed. In paragraph 52 of Leffler (C‑443/03, EU:C:2005:665), the Court speaks, with regard to comparable situations, of ‘a refusal … which purely seeks to delay matters and manifestly constitutes an abuse’. ( )
41.
Consequently, in the event of failure to attach the standard form set out in Annex II to Regulation No 1393/2007 to the document to be served, it is for the national court ( ) to determine whether that document was written in a language understood by the addressee or an official language of the State addressed. ( )
42.
As was noted in point 9 above, the respondents stated that in each of the seven cases in the main proceedings certain documents and translations which ought to have been served on them had not been served.
43.
It remains for me to consider the term ‘document to be served’, which Regulation No 1393/2007 does not define, nor does it make any reference to annexes, the number and nature of which vary considerably according to the national legal system concerned. ( )
44.
In paragraph 73 of Weiss und Partner (C‑14/07, EU:C:2008:264) the Court held that where the document to be served is, as in the cases in the main proceedings, a document instituting the proceedings, the document or documents to be served must enable the addressee to assert his rights in legal proceedings in the State of transmission, to identify with a degree of certainty at the very least the subject-matter of the claim and the cause of action as well as the summons to appear before the court. ( ) The Court goes on to state that ‘documents which have a purely evidential function and are not necessary for the purpose of understanding the subject-matter of the claim and the cause of action do not form an integral part of the document instituting the proceedings’.
45.
At first sight and subject to verification by the referring court, service on the respondents of a true copy of the document instituting the proceedings, both in Greek and in English, enabled them to identify with a degree of certainty the subject-matter of the claim and the cause of action in the cases in the main proceedings.
46.
However, as regards the summons to enter an appearance before a court, it appears that there was a significant difference between the time-limits set in the document instituting the proceedings and the contested order ( ) in the cases in the main proceedings. For example, so far as Mr Si is concerned, the time-limit set in the document instituting the proceeding appears to have been 10 days, whilst the time-limit set in the contested order — which was served only in Greek — appears to have been 60 days, which the respondents claim was misleading. However, it was not disputed at the hearing and it is clear from the documents lodged at the Court (which it is for the referring court to confirm) that, in each of the cases in the main proceedings, the time-limit set in the contested order is the same as that set in the attached notice. ( ) That ‘notice’ was served on the respondents both in Greek and in English.
47.
If, contrary to the evidence contained in points 45 and 46 above, the referring court were to find (quod non?) that the failure to use the standard form set out in Annex II to Regulation No 1393/2007 and the absence of a translation of the contested order, or the uncertainty regarding the time-limits for entering an appearance did indeed infringe the respondents’ rights of defence, that situation should be remedied as soon as possible, ( ) by sending the standard form and the missing translation in accordance with the rules for the service of documents laid down by Regulation No 1393/2007, ( ) which would confirm automatically the time-limit for entering an appearance contained in the contested order.
48.
In that regard, I concur with the observations of the Spanish Government that it is appropriate to revert, so far as possible, to the situation existing prior to the irregularity. ( ) None of the possible failures at issue can be remedied by effecting service of the document to be served and the standard form at issue on the respondents’ lawyer. Service in that way would not comply with the rules laid down by Regulation No 1393/2007. ( )
49.
In my view, to find otherwise would jeopardise the independent and uniform interpretation and application of Regulation No 1393/2007. ( )
50.
In the light of the foregoing, I consider that failure to use the standard form set out in Annex II to Regulation No 1393/2007 when effecting service of a document instituting proceedings does not constitute a ground of invalidity of such service if the addressee of the document is enabled to assert his rights in legal proceedings in the State of transmission. Failures which infringe the rights of defence of the addressee of the document to be served must be remedied as soon as possible in accordance with the rules for the service of documents laid down by Regulation No 1393/2007.
VI – Conclusion
51.
In the light of all the above considerations, I propose that the Court should answer the questions referred by the Anotato Dikastirio Kyprou as follows:
Article 8 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, must be interpreted as meaning that use of the standard form set out in Annex II to that regulation when effecting service on the addressee of the document to be served is required in all cases without exception, irrespective both of the language in which the document to be served is written and whether or not it is accompanied by a translation into a language understood by the addressee or into the official language of the Member State addressed or, if there are several official languages in that Member State, into the official language or one of the official languages of the place where service is to be effected.
Failure to use the standard form set out in Annex II to Regulation No 1393/2007 when effecting service of a document instituting proceedings does not constitute a ground of invalidity of such service if the addressee of the document is enabled to assert his rights in legal proceedings in the State of transmission. Failures which infringe the rights of defence of the addressee of the document to be served must be remedied as soon as possible in accordance with the rules for the service of documents laid down by Regulation No 1393/2007.
( ) Original language: French.
( ) In each of the seven cases Alpha Panareti Public Ltd is summoned in that capacity.
( ) OJ 2010 L 324, p. 79.
( ) It is clear from the documents submitted to the Court that that company, incorporated in Cyprus, is not owned by Alpha Bank.
( ) The vendor is established in Cyprus.
( ) That is to say, an application submitted without notice to the other party.
( ) Referred to as a ‘writ of summons’ in the procedural documents attached to the request for a preliminary ruling.
( ) Referred to as a ‘notice of writ’ in the procedural documents attached to the request for a preliminary ruling (‘the notice’).
( ) Service in the cases in the main proceedings took place in accordance with Article 4(1) of Regulation No 1393/2007, namely between the designated (‘transmitting’ (in Cyprus) and ‘receiving’ (in the United Kingdom)) agencies, in pursuance of Article 2 of that regulation.
( ) See Article 8(4) of Regulation No 1393/2007. The questions referred to the Court concern in particular documents initiating the proceedings. As regards its scope, that regulation provides for only two circumstances in which the service of a judicial document between Member States falls outside its scope, namely (i) where the permanent or habitual residence of the addressee is unknown and (ii) where that person has appointed an authorised representative in the State where the judicial proceedings are taking place. In other situations, where the person to be served with the judicial document resides abroad, the service of that document necessarily comes within the scope of that regulation and must, therefore, be carried out by the means put in place by the regulation to that end, as provided for by Article 1(1) thereof. See also to that effect, paragraphs 24 and 25 of Alder (C‑325/11, EU:C:2012:824).
( ) See paragraph 37 of Alder (C‑325/11, EU:C:2012:824), in which the Court held that ‘Article 4(3) and Article 5(1) of Regulation No 1393/2007, read in the light of recital 12 in the preamble thereto, lay down the requirement that the service of judicial documents be effected using a standard form and that that form be translated into a language understood by the addressee or into the official language of the Member State addressed, or, if there are several official languages in that Member State, into at least one of the official languages of the place where that service is to be effected’.
( ) See to that effect, inter alia, the versions in Spanish ‘[e]l organismo receptor informará al destinatario’, Czech ‘[p]řijímající subjekt vyrozumí adresáta’, German ‘[d]ie Empfangsstelle setzt den Empfänger […] in Kenntnis’, Greek ‘[η]υπηρεσία παραλαβής ενημερώνει τον παραλήπτη’, English ‘[t]he receiving agency shall inform the addressee’, French ‘[l]’entité requise informe, Irish ‘[c]uirfidh an ghníomhaireacht fála an seolaí ar an eolas’, Italian ‘[l]’organo ricevente informa il destinatario’, Dutch ‘[d]e ontvangende instantie stelt degene voor wie het stuk is bestemd […] in kennis’, Portuguese ‘[a] entidade requerida avisa o destinatário’, Slovak ‘[p]rijímajúci orgán […] informuje adresáta’ and Finnish ‘[v]astaanottavan viranomaisen on ilmoitettava vastaanottajalle’.
( ) OJ 2000 L 160, p. 37.
( ) See Article 4(1) of Regulation No 1393/2007, which provides that ‘[j]udicial documents shall be transmitted directly and as soon as possible’. See Alder (C‑325/11, EU:C:2012:824, paragraph 34). See, by analogy, Weiss und Partner (C‑14/07, EU:C:2008:264, paragraph 46) and Roda Golf & Beach Resort (C‑14/08, EU:C:2009:395, paragraph 54) with regard to Regulation No 1348/2000. As the Commission observes, it ‘is clear from recitals 2, 6 and 7 of Regulation No 1393/2007 that its objective is to improve and expedite the transmission of judicial and extrajudicial documents in civil or commercial matters for service between the Member States which are to be served in another Member State, whilst ensuring judicial protection for the defendant’.
( ) Regarding the importance of respect for the rights of the defence during the service of documents, see Weiss und Partner (C‑14/07, EU:C:2008:264, paragraphs 47 and 48).
( ) Moreover, as the Austrian Government observes, the ‘fact of attaching the standard form to the document to be served does not delay the service procedure. On the contrary, there [would be] a risk of errors and delays were it necessary to examine whether or not there was an exception. It should be borne in mind that there are a large number of requests for service and each service procedure must therefore be simplified as far as possible’. I agree with the Spanish Government that ‘[u]se of that form ensures not only that a document is transmitted speedily but also that it is transmitted safely’.
( ) Moreover, where receiving agencies do have discretion Regulation No 1393/2007 makes express provision to that effect. See, for example, Article 7(1) of that regulation, which provides that the transmitting agency is not obliged to effect service of the document by a particular method requested by the transmitting agency if that method is incompatible with the law of the Member State addressed. See also, by analogy, Articles 12 to 15 of Regulation No 1393/2007.
( ) In paragraph 46 of Leffler (C‑443/03, EU:C:2005:665) the Court held in respect of Regulation No 1348/2000, which preceded Regulation No 1393/2007, that ‘the choice of the form of a regulation, rather than that of a directive initially proposed by the Commission, shows the importance which the Community legislature attaches to the direct applicability of the Regulation’s provisions and their uniform application’. See also Weiss und Partner (C‑14/07, EU:C:2008:264, paragraph 60).
( ) Paragraph 3 of Article 1 of Regulation No 1393/2007, which is entitled ‘Scope’, provides that ‘[i]n this Regulation, the term “Member State” shall mean the Member States with the exception of Denmark’. However, application of that regulation was extended to include the Kingdom of Denmark under the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters, signed at Brussels on 19 October 2005 (JO 2005 L 300, p. 55).
( ) COM(2013) 858 final. In that report the Commission assesses the application of Regulation No 1393/2007 during the period from 2008 to 2012. Article 24 of that regulation provides that no later than 1 June 2011, and every five years thereafter, the Commission must assess the application of the regulation and, if need be, propose adaptations. The Commission states in the report that it launched a study in 2011 in order to collect data and assess the application of Regulation No 1393/2007. The matter was also discussed at meetings of the European Judicial Network in Civil and Commercial Matters, and the Commission states that it took into account citizens’ letters, complaints and petitions, and preliminary rulings by the European Court of Justice concerning that regulation.
( ) Emphasis added.
( ) See point 26 of this Opinion.
( ) See, by analogy, judgment in Leffler (C‑443/03, EU:C:2005:665, paragraphs 37 and 39).
( ) See also, to that effect, judgments in Simmenthal (106/77, EU:C:1978:49, paragraph 16); Factortame and Others (C‑213/89, EU:C:1990:257, paragraph 19); Courage and Crehan (C‑453/99, EU:C:2001:465, paragraph 25); and Muñoz and Superior Fruiticola (C‑253/00, EU:C:2002:497, paragraph 28). Moreover, in paragraph 39 of Leffler (C‑443/03, EU:C:2005:665) the Court adds that ‘several of [the regulation’s] provisions suggest that the lack of translation may be remedied’. I note that although the earlier regulation required a translation it made no mention of a form.
( ) See also the judgments in Leffler (C‑443/03, EU:C:2005:665, paragraph 52) and Weiss und Partner (C‑14/07, EU:C:2008:264, paragraph 76).
( ) See to that effect Weiss und Partner (C‑14/07, EU:C:2008:264, paragraph 47) and Alder (C‑325/11, EU:C:2012:824, paragraph 35).
( ) See paragraph 52 of Leffler (C‑443/03, EU:C:2005:665).
( ) It is clear from the wording of Article 8(1) of Regulation No 1393/2007 that the addressee of the document to be served has the right to refuse to accept the document only if it is not written in or accompanied by a translation into one of the languages provided for. See also recital 10 in the preamble to Regulation No 1393/2007, which states that in order to ‘secure the effectiveness of [that] Regulation, the possibility of refusing service of documents should be confined to exceptional situations’.
( ) See, by analogy, Article 19 of Regulation No 1393/2007.
( ) In the present case, English.
( ) See, to that effect, Weiss und Partner (C‑14/07, EU:C:2008:264, paragraphs 41 to 45).
( ) ‘[I]t can take a long time to translate supporting documents and, in any event, such translation is not necessary for the purposes of the action which will take place before the court of the Member State of transmission and in the language of that State’ (see paragraph 74 of Weiss und Partner (C‑14/07, EU:C:2008:264). The objectives of Regulation No 1393/2007 to improve and expedite the transmission of documents would be undermined if a translation of ‘secondary’ documents was required.
( ) It should be noted that service of the contested order to the respondents is provided for under Cyprus law.
( ) Therefore, the contested order and the notice attached to the document instituting the proceedings set a time-limit for entering an appearance of 60 days in the case of Mr Si.
( ) See, to that effect, Leffler (C‑443/03, EU:C:2005:665, paragraph 64).
( ) See, to that effect, Leffler (C‑443/03, EU:C:2005:665, paragraph 63). See, by analogy, Article 8(3) of Regulation No 1393/2007.
( ) I note in that regard that at the time the judicial documents at issue in the main proceedings were served the respondents were residing abroad. Given that the latter had not at that time appointed an authorised representative in the Member State where the judicial proceedings are taking place, namely Cyprus, service of those documents necessarily fell, and still falls, within the scope of Regulation No 1393/2007, as provided for by Article 1(1) thereof. See, by analogy, Alder (C‑325/11, EU:C:2012:824, paragraphs 24 and 25).
( ) Alder (C‑325/11, EU:C:2012:824, paragraphs 29 to 32). The means of transmission within Member States of judicial documents in civil or commercial matters are laid down in an exhaustive manner in the scheme established by Regulation No 1393/2007.
( ) See, also, recital 8 in the preamble to Regulation No 1393/2007, which states that that ‘regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party’. | 6 |
Judgment of the Court of First Instance (Fifth Chamber) of 29 January 1993. - Robert Wery v European Parliament. - Conditions for the grant of the education allowance. - Case T-86/91.
European Court reports 1993 Page II-00045
Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
++++
Officials ° Remuneration ° Family allowances ° Education allowance ° Conditions for granting ° Training received in an educational establishment but connected to a contract of apprenticeship
(Staff Regulations, Annex VII, Art. 3)
Summary
The distinction between educational training and vocational training in Article 2(3)(b) of Annex VII to the Staff Regulations allows payment of the education allowance provided for in Article 3 of that annex to be withheld where the dependent child in respect of whom the education allowance is sought is receiving vocational training with no connection with an educational establishment. On the other hand, the distinction does not prevent payment of the education allowance where a dependent child is receiving vocational training provided by an educational establishment at which he is in regular full-time attendance. In that respect, the purpose of the first paragraph of Article 3 of Annex VII to the Staff Regulations allows training provided outside the establishment to be treated as regular full-time attendance at an educational establishment if such training is regarded as an integral part of the programme of instruction laid down by that establishment.
Consequently, entitlement to the education allowance arises in respect of a child receiving vocational training given by an educational establishment which is approved as such by the national authorities, including where part of that training takes place under a contract of apprenticeship concluded under the aegis of the educational establishment.
Parties
In Case T-86/91,
Robert Wery, an official of the European Parliament, residing at Arlon (Belgium), represented by Jean-Noël Louis, of the Brussels Bar, with an address for service in Luxembourg at the office of Fiduciaire Myson SARL, 1 Rue Glesener,
applicant,
v
European Parliament, represented by Jorge Campinos, Jurisconsult, assisted by Kieran Bradley, of the Legal Service, acting as Agents, with an address for service at the Secretariat of the European Parliament, Kirchberg,
defendant,
APPLICATION for the annulment of the decision to withdraw, as from 1 April 1990, the education allowance for the applicant' s child and the decision to deduct the corresponding amounts from his salary and, so far as necessary, the general implementing provisions relating to the grant of the education allowance inasmuch as they require educational training which comprises a minimum number of hours of theoretical instruction,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of: D.P.M. Barrington, President, R. Schintgen and K. Lenaerts, Judges,
Registrar: B. Pastor, Administrator,
having regard to the written procedure and further to the hearing on 10 November 1992,
gives the following
Judgment
Grounds
The facts of the case
1 On 28 September 1990 the applicant submitted an application for an education allowance for his three children for 1990/91, using the standard form provided for that purpose by the administration. With regard to his son Laurent, who had been under a recognized contract of apprenticeship as a floriculturist at Arlon since 14 March 1990 and was to remain under the contract until 31 July 1992, he attached to his application a certificate issued by the competent Belgian authorities and a copy of his contract of apprenticeship.
2 By memorandum of 4 February 1991 the European Parliament (hereinafter referred to as "the Parliament") informed the applicant that in respect of his son Laurent the education allowance and the dependent child allowance, which had both originally been granted, would be withdrawn with effect from April 1990 and that amounts equivalent to the sums already paid would be deducted from his salary.
3 The applicant maintains, and the Parliament accepts, that in answer to his requests for an explanation the administrator of the competent service informed him, firstly, that an education allowance is not generally granted for an official' s child who is serving an apprenticeship and, secondly, that even if it were possible to treat part of his son' s training under the contract of apprenticeship as educational training the education allowance could still not be granted as in his case the number of hours of theoretical instruction was less than the requisite minimum of 16 hours per week.
4 However, the Parliament decided to resume the dependent child allowance, which the decision of 4 February 1991 had also withdrawn, and to refund the amounts which had already been deducted in that connection. The withdrawal of the education allowance was none the less upheld.
5 On 3 May 1991 the applicant submitted a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities (hereinafter "the Staff Regulations") concerning the decision of 4 February 1991. He challenged the grounds relied on by the administrator of the competent service, namely that an apprenticeship did not qualify for an education allowance and that, in any case, the number of hours of theoretical instruction was less than the requisite minimum.
6 The Parliament recognized that the complaint raised the question of whether vocational training under a national apprenticeship programme could be treated as regular full-time attendance at an educational establishment within the meaning of Article 3 of Annex VII to the Staff Regulations and, while still not accepting that it should be so treated but not excluding the possibility of reviewing its previous practice, it decided to submit the question for examination by the Committee of Heads of Administration, particularly in the light of the judgment of the Court of First Instance in Joined Cases T-34/89 and T-67/89 Costacurta v Commission [1990] ECR II-93. However, at the meeting on 19 February 1992 of the committee responsible for the preparations for the session of the abovementioned Committee it emerged that most of the other institutions shared the Parliament' s view and consequently it was decided not to refer the question to the Committee.
7 On 26 August 1991 the Secretary General of the Parliament rejected the complaint of 3 May 1991 in the following terms:
"I have examined your complaint of 3 May 1991.
I regret to inform you that I am unable to give you a favourable reply.
In so far as it concerns the dependent child allowance for your son Laurent, the complaint is devoid of purpose. It is common ground that the administration reversed its decision to withdraw this allowance before you submitted your complaint and refunded the amounts withheld in that respect in April 1991.
In so far as it concerns the withdrawal of the education allowance for Laurent, the complaint is unfounded. Without prejudice to the question which you have raised whether your son' s training course entitles you to an education allowance, I would remind you that it is for the official to show that he has incurred 'actual education costs' within the meaning of Article 3 of Annex VII to the Staff Regulations. Such proof is even more necessary in the present case, since your son himself receives a monthly allowance in excess of the amount fixed for the education allowance.
In these circumstances, I can only uphold the decision to withdraw as from 1 April 1990 the education allowance which you previously received for your son Laurent."
8 By memorandum of 10 September 1991 to the Secretary General of the Parliament, the applicant claimed that the administration had never asked him to produce evidence of the actual education costs which he incurred and that the fact that such an obligation was imposed on him and not on other officials constituted an infringement of the principle of equal treatment. By letter of 3 December 1991 the Secretary General of the Parliament confirmed his decision of 26 August 1991.
9 Following the rejection of his complaint, and in reply to a further application for the education allowance for 1991/92, the administration sent the applicant a letter dated 13 November 1991 asking him to produce "the invoices proving the actual education costs connected with your son Laurent' s apprenticeship". During the procedure before the Court the applicant stated that he did not learn of this letter until 26 November 1991, that is the very day when he lodged his application at the Registry of the Court.
10 In his reply, which was undated, the applicant firstly pointed out that the request in the said letter for proof of the actual education costs that he had incurred was the very first request of that type which the administration had sent him. He then detailed the costs of his son Laurent' s apprenticeship.
Procedure and forms of order sought by the parties
11 Consequently the applicant brought the present action on 26 November 1991. The written procedure followed the normal course.
12 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure without any preparatory inquiry.
13 However, the Court requested the parties to give written answers to questions concerning, first, the documents relating to the apprenticeship being served by the official' s son which had been attached to the application for the education allowance in issue; secondly, the actual education costs of the apprenticeship; thirdly, the right of a person in a situation comparable to the applicant' s to receive, under Belgian law, family allowances and/or social benefits in connection with school attendance and also whether a person in a situation comparable to that of the applicant' s son might be able to obtain a grant under Belgian law.
14 The hearing took place on 10 November 1992. The parties' representatives made their submissions to the Court and gave their replies to the Court' s questions.
15 The applicant claims that the Court should:
1. annul the decision to withdraw the education allowance in respect of his son as from 1 April 1990;
2. annul the decision to make deductions from his salary pursuant to the memorandum of 4 February 1991;
3. order the European Parliament to repay the sums deducted, with interest at 8% per annum from the date of each deduction until the date of repayment;
4. order the defendant to pay the costs;
5. to the extent necessary, declare illegal the general implementing decision adopted by the defendant relating to the grant of the education allowance, in so far as it requires a minimum number of hours of theoretical instruction for students taking a vocational training course officially recognized by a Member State.
16 The Parliament claims that the Court should:
° declare the application inadmissible;
° for the remainder, declare that it is unfounded;
° make an order for costs in accordance with the law.
Admissibility
Arguments of the parties
17 The Parliament disputes the admissibility of the application on the ground that the applicant' s complaint of 3 May 1991 was rejected because he failed to produce proof of the education costs actually incurred by him for his son Laurent. As he failed to produce such proof, the applicant, according to the Parliament, had no right of action and therefore his complaint was inadmissible.
18 The Parliament adds that while the administrator of the service did not mention the absence of proof of actual education costs at the interviews with the applicant following the decision of 4 February 1991, the reason was that this was quite incidental by comparison with the principal ground for rejecting the application for the education allowance, namely the fact that the training pursued by the applicant' s son could not be treated as equivalent to educational training, which alone gave the right to the education allowance.
19 Alternatively, the Parliament claims that the submissions relied on in the application are not consistent with those relied on in the complaint and that they must therefore be dismissed (see judgment of the Court of First Instance in Case T-57/89 Alexandrakis v Commission [1990] ECR II-143, paragraph 8).
20 The applicant replies, firstly, that the Parliament' s observations show that it accepts that the decision to withdraw the education allowance for his son Laurent and the rejection of his complaint were based on the nature of the training and not on the alleged absence of supporting documents.
21 Secondly, he points out that it was not until the memorandum of 13 November 1991 from the Staff Regulations and Personnel Administration Department that the Parliament asked him for the invoices proving the actual education costs of his son' s apprenticeship and that, as a result of the memorandum, he sent a statement of the costs to the Parliament on 3 December 1991.
22 With regard to consistency between the complaint and the application, the applicant points out that originally the Parliament had clearly indicated that the refusal of the education allowance was due entirely to the vocational nature of his son' s training. Therefore this was the only ground against which he was able to direct his complaint. It was only at the stage of the decision rejecting the complaint that the Parliament first raised the absence of proof of the actual education costs.
23 The applicant concludes that it is admissible for him to answer, in his application to the Court, the argument of which he did not become aware until the decision rejecting his complaint.
Findings of the Court
24 The Court finds that the Parliament accepts that, before the decision rejecting the complaint, it had never raised any grounds other than the type of training pursued by the applicant' s son for refusing the education allowance. Therefore the Parliament led the applicant to believe that the sole ground for rejecting his application was the type of educational training being undertaken by his son.
25 It follows that the Parliament is not justified in contesting the admissibility of the present application by claiming that it is based on new submissions in comparison with the substance of the complaint, such as those relating to the applicant' s denial that he has an obligation to prove his son' s actual education costs.
26 As regards the question whether the applicant has a right of action since he did not submit proof of the actual education costs that he had to incur, this cannot be separated from the question whether he had to prove those costs or whether he could take advantage of the standard-rate arrangement laid down by the general implementing provisions relating to the grant of the education allowance adopted by the Parliament (hereinafter "the general provisions"). This is a question of substance. For that reason the question of the applicant' s right of action is inseparable from an examination of the substance of the case.
27 The application must therefore be declared admissible.
Substance
28 In support of his application, the applicant relies on two submissions, one alleging infringement of Articles 2 and 3 of Annex VII to the Staff Regulations and the second alleging infringement of Article 25 of the Staff Regulations. Furthermore, and to the extent necessary, he contends that the general provisions are unlawful in so far as they require educational training consisting of a minimum number of hours of theoretical instruction.
29 The first paragraph of Article 3 of Annex VII provides that an education allowance is to be granted "for each dependent child, within the meaning of Article 2(2) [of Annex VII to the Staff Regulations], who is in regular full-time attendance at an educational establishment". Pursuant to Article 2(3)(b) of Annex VII to the Staff Regulations, the dependent child allowance is to be granted "for children between eighteen and twenty-six who are receiving educational or vocational training".
Alleged infringement of Articles 2 and 3 of Annex VII to the Staff Regulations
Arguments of the parties
30 The applicant observes that the Parliament has resumed payment of the dependent child allowance. It has therefore accepted that his son is receiving educational or vocational training. That is in fact the case because, according to the applicant, his son is under a contract of apprenticeship in floriculture recognized by the competent Belgian authorities and is therefore following a regular full-time course of vocational training including, in addition to practical training, general and scientific theoretical instruction.
31 In so far as it refers to "an educational establishment", the first paragraph of Article 3 of Annex VII makes no distinction between educational establishments providing educational training and those providing vocational training.
32 The applicant therefore considers that, as his son is taking vocational training at an educational establishment, he is entitled to the education allowance provided for in the first paragraph of Article 3 of Annex VII.
33 The applicant relies on the judgment of the Court of Justice in Case C-149/90 Costacurta v Commission [1991] ECR I-5463 in contending that the only condition laid down in Article 3 of Annex VII to the Staff Regulations is that the child for whom the education allowance is claimed is in "regular and full-time attendance at an educational establishment", even if part of the training takes place outside that establishment.
34 He also submits that the Parliament cannot object that he did not produce proof of the education costs actually incurred with his application for the education allowance. In this connection he points out that the Parliament waited until the reply to the complaint before raising this question and that it waited until 13 November 1991 that is after the end of the academic year in question, before asking him to produce proof. He adds that the Parliament agreed that, in the interviews with him in February, it had not raised the question of proof. Furthermore, he has produced proof of the costs which he has actually incurred for his son.
35 The applicant finally states that he had no obligation to produce such proof as he was entitled to receive the standard rate laid down in the general provisions and the Parliament could not refuse this on the ground that his son was receiving vocational training.
36 The Parliament replies that it is clear from the wording of the contract of apprenticeship and from the relevant legislative provisions that the applicant' s son is receiving full-time vocational training, consisting of a practical part (of approximately 31 hours per week) and a theoretical part (of 8 hours 45 minutes per week). The Parliament refuses to accept that the provision of theoretical instruction can convert vocational training into educational training.
37 The Parliament considers that the vocational nature of the training received by the applicant' s son prevents the grant of an educational allowance to the applicant. The first paragraph of Article 3 of Annex VII should in fact be interpreted in the light of the distinction in Article 2(3)(b) between educational training and vocational training. The "educational" allowance (allocation "scolaire") is payable only in respect of "educational" training (formation "scolaire") within the meaning of Article 2(3)(b) received on a regular, full-time basis at an educational establishment (établissement d' enseignement) which is necessarily "educational" ("scolaire").
38 The Parliament justifies this interpretation by observing that educational training is characterized by attendance at an educational establishment (établissement d' enseignement) of an educational type (type scolaire) and does not normally give rise to payment from the State for the benefit of the child' s family. Otherwise it is necessary to apply Article 67(2) of the Staff Regulations, which provides that officials in receipt of family allowances are to declare allowances of like nature paid from other sources and that such latter allowances are to be deducted from those paid under Articles 1, 2 and 3 of Annex VII (see judgment of the Court of First Instance in Case T-117/89 Sens v Commission [1990] ECR II-185). An apprenticeship, on the other hand, is characterized by more or less regular attendance at a place of work, possibly supplemented by part-time attendance at an educational establishment of a vocational type, and generally gives rise to remuneration.
39 The Parliament adds that, as the applicant did not produce proof of the actual education costs incurred in respect of his son, he cannot claim the education allowance. The Parliament states that the applicant cannot take advantage of the standard-rate arrangement laid down in the general provisions because this is only for children receiving educational training and not for those receiving vocational training.
40 Lastly, the Parliament states that if it did not mention this point during the administrative procedure, the reason is that it was quite incidental to the principal ground for rejecting the application for the education allowance, namely the vocational nature of the training.
Findings of the Court
41 The Court notes at the outset that the Parliament accepts that Laurent Wery is dependent on his father, to whom the dependent child allowance has been granted. It is therefore necessary to examine whether in this case the applicant is also entitled to the education allowance.
42 The Court finds that the Parliament' s arguments rest on the strict distinction between educational training and vocational training in Article 2(3)(b) of Annex VII. The Parliament considers that the two are mutually exclusive and that vocational training cannot therefore give rise to payment of an education allowance.
43 On this point it must be observed that the Court of Justice, in defining "vocational training" within the meaning of Article 128 of the EEC Treaty, considered not only that vocational training and educational training are not mutually exclusive, but also that to a large extent they are the same if the training is provided in an educational establishment. The Court of Justice has held that "any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education" (Case 293/83 Gravier v City of Liège [1985] ECR 593, paragraph 30, and Case 24/86 Blaizot v University of Liège [1988] ECR 379, paragraph 24). The Court concluded in the first case that "vocational training" includes courses in strip cartoon art provided by an institute of higher art education" and in the second case that it includes, inter alia, "university studies in veterinary medicine".
44 The Parliament cannot claim that this interpretation renders the distinction in Article 2(3)(b) of Annex VII meaningless. The distinction remains relevant in the sense that it allows payment of the education allowance to be withheld in respect of children for whom the dependent child allowance is paid when they are receiving vocational training not connected with an educational establishment.
45 Therefore, to determine whether in the present case the applicant is entitled to payment of the education allowance in respect of his son' s training, it is necessary to examine whether the training in question in floriculture ° which both parties agree must be described as vocational ° is provided by an educational establishment.
46 On this point it must be observed that the training in floriculture is in three parts comprising general knowledge, theoretical vocational knowledge and practice. Lessons in the first two take eight hours forty-five minutes per week, while the third takes the form of a contract of apprenticeship under which, in this case, the head of the enterprise has undertaken to train the applicant' s son in the trade of floriculturist for a period from 14 March 1990 to 31 July 1992, in accordance with a specific programme approved by the French Community in Belgium.
47 In the first place the Court observes that the first two ° theoretical ° parts of the course of training are provided by the Institut Francophone de Formation Permanente des Classes Moyennes and, secondly, that the contract of apprenticeship was concluded under the auspices of that institution and the supervision of the administration for training of the Ministry for the French Community, and is signed by the Minister' s representative. Article 6 of the contract provides that "the working time shall not exceed 40 hours per week, including hours of instruction".
48 In addition, for certain students of the institution who are younger than the applicant' s son, the training they receive there enables them to satisfy the compulsory schooling requirements to which they are subject under Belgian law.
49 It follows from the foregoing that the Institut Francophone de Formation Permanente des Classes Moyennes, an establishment recognized by the French Community of Belgium ° which, under the Belgian Constitution, is competent in matters of education °, is an educational establishment within the meaning of the first paragraph of Article 3 of Annex VII and that the applicant' s son is receiving educational training there.
50 Under that provision, in order to receive an education allowance, the child in respect of whom it is claimed must not only take a course in an educational establishment but must also be in regular full-time attendance at that establishment. It is therefore necessary to ascertain whether the applicant' s son is in regular full-time attendance at the establishment.
51 In this connection it is clear from the case-law of the Court of Justice and the Court of First Instance that the assimilation of training completed outside an educational establishment to regular full-time attendance at the establishment may be justified, having regard to the purpose of the first paragraph of Article 3 of Annex VII, if it is regarded as an integral part of the programme of instruction laid down by the educational establishment (see the judgment of the Court of First Instance in Joined Cases T-34/89 and T-67/89 Costacurta v Commission, cited above, upheld on appeal by the judgment of the Court of Justice in Case C-149/90, cited above, paragraph 8).
52 In the present case the Court finds that the applicant' s son is in regular full-time attendance at the training course provided by the Institution Francophone de Formation Permanente des Classes Moyennes.
53 Furthermore, in the case of university education leading to a profession, towards the end of the course the essential part of the training is frequently provided, not in the educational institution where the course is being taken, but outside it and under its supervision with professional practitioners. In such cases entitlement to the education allowance is not disputed.
54 Consequently it would be socially unfair to accept that the parents of a university student spending the greater part of his time on in-service training qualify for the education allowance, while those of a student receiving manual training and also spending the greater part of his time in apprenticeship under a training programme provided by an educational establishment do not so qualify.
55 On the question whether the Parliament may base its decision to refuse the education allowance on the ground that the applicant has not produced proof of the actual costs of his son' s education, the Court observes, like the applicant, that the Parliament did not put forward that ground until the stage of rejecting the complaint, when the academic year had ended, and that it was even later, on 13 November 1991, when the Parliament asked the applicant to produce proof of the actual education costs, which the applicant did without delay. Furthermore, the Parliament accepted that this reason for refusing to pay the allowance was secondary compared with the matter of the nature of the training and, at the hearing, the Parliament expressed the wish that "the Court [would] resolve the question of principle" (that is the interpretation of Article 3 of Annex VII), and stated that "the administration of the European Parliament has not had the opportunity to judge the matter" (that is whether the proof produced by the applicant was adequate and appropriate), that "the general provisions cited by the applicant are not appropriate" and that "quite simply, the general provisions could not be applied".
56 It follows that the question of proof of the actual education costs incurred by the applicant for his son must be examined by the Parliament, which will, if necessary, have to decide in the light of the present judgment on how to apply the general provisions in issue to training such as that received by the applicant' s son.
57 On the question whether the monthly allowance paid to the applicant' s son by the head of the enterprise pursuant to Article 3 of the contract of apprenticeship is an allowance "of like nature" to the education allowance within the meaning of Article 67(2) of the Staff Regulations, the Court considers that it should not make an assessment where the administration has not yet done so. This question must be determined by the administration in the light of the information available, subject to review by the Court if necessary.
58 There is all the more reason for that to be the case as neither the applicant nor the Parliament gave their views on that point during the procedure before the Court and also because the Parliament, in its letter of 26 August 1991, touched on the question without even hinting at an answer. The letter reads: "I would remind you that it is for the official to prove that he has incurred "actual education costs" within the meaning of Article 3 of Annex VII to the Staff Regulations. Such proof is all the more necessary in the present case as your son himself receives a monthly allowance in excess of the amount fixed for the education allowance". In its defence (paragraph 8), the Parliament added that "the administration considered that, where an apprenticeship or part thereof could be regarded as giving the right to an education allowance, it would have to decide whether the monthly allowance received by the applicant' s son should be deducted from the said education allowance".
59 It follows from all the foregoing, without there being any need to examine the applicant' s other submissions, that the decision of 4 February 1991 to withdraw as from 1 April 1990 the education allowance in respect of the applicant' s son Laurent and the decision to make deductions from the applicant' s salary for the amounts already paid must be annulled. It will be for the Parliament to draw the appropriate conclusions from such annulment.
60 It follows that the claim for default interest at 8% per annum is premature.
Decision on costs
Costs
61 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. Since the defendant has failed in its submissions, it must be ordered to pay all the costs.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby:
1. Annuls the Parliament' s decision of 4 February 1991 to withdraw, as from 1 April 1990, the education allowance which the applicant received in respect of his son Laurent;
2. Annuls the Parliament' s decision to make deductions from the applicant' s salary pursuant to the decision of 4 February 1991;
3. Dismisses the remainder of the application;
4. Orders the Parliament to pay all the costs. | 6 |
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