The Supreme Court has decided that guidance is needed from the CJEU on a number of issues relating to the scope of the principle of equivalence.

This is the principle of EU law which requires that the procedural rules relating to the domestic enforcement of EU rights be no less favourable than the rules governing the enforcement of similar rights based in domestic law.

Along with the principle of effectiveness it is one of the two constraints on the autonomy of Member States to determine the procedures by which EU law will apply domestically. But, while its sister principle has comfortably taken its place as one of the deadliest guns in the European lawyer’s locker, the principle of equivalence remains comparatively under-explored – so much so that, in the leading work on the general principles of European law, the discussion of the two principles appears in a chapter headed “The Principle of Effectiveness”.

The issue in FA (Iraq) v Secretary of State for the Home Department [2011] UKSC 22 was, ultimately, a narrow one. The relevant domestic legislation provides for a right of appeal against the rejection of an asylum claim, but not (as the Court of Appeal below had confirmed) against a rejection of a humanitarian protection claim based on the provisions of the Qualification Directive. Did the principle of equivalence require that a right of appeal be available against the second type of rejection?

FA argued that it did, and the Court of Appeal agreed. An Act of Parliament provided for an appeal right against rejections of one type of claim but not another, and the claim which did not benefit from the appeal was based in European law, so the Court would have to read the relevant section as applying to both.

The Secretary of State disagreed, and the case became about comparators: what characteristics must a ‘domestic’ and ‘European’ right each bear before the Court can compare them for the purposes of determining that their treatment in domestic law is insufficiently equivalent?

First, the Secretary of State argued that there was no comparison between ‘domestic’ and ‘European’ rights in this case because both rights were rooted in the Qualification Directive. A domestic Act had created additional rights in relation to asylum claims, but the rights underlying both claims were ultimately EU rights, so the principle of equivalence – which is aimed at safeguarding EU rights – did not need to step in.

This submission was based on the fact that early statements of the equivalence principle by the ECJ required that the comparator be derived “wholly” or “purely” from domestic law. The Court surveyed the case law and noted that, over time, those words had quietly disappeared, but that they had not been expressly disavowed. Since the point hinged on whether or not they should be there, the Court concluded that this issue had to be referred.

Second, the Secretary of State argued that the two rights were in any event insufficiently similar to engage the principle of equivalence. He relied on domestic authority that the two claims must have a closely related “juristic structure”, and noted that a recognition of refugee status is declaratory, while humanitarian protection status arises only when a decision has been made to grant it. FA argued that there was no relevant difference between two rights aimed at protecting individuals from return to serious harm.

The Court noted that the issue did not appear to have been considered by the CJEU; again, a reference was needed.

The parties now have until later this month to make submissions as to the framing of the questions to be referred. Until they do and an answer comes back, the scope of the principle of equivalence remains up for grabs.

The Secretary of State’s suggested approach would seem to require the courts to engage in a searching analysis of the origins and juristic mechanics of any proposed pair of rights presented to it. It raises a number of difficult questions about how ‘purely domestic’ a claim must be before European law takes umbrage at its being prioritised.

Would a gold-plated provision, self-consciously unique to the UK but prompted by the European direction of travel, be sufficiently Europe-tinted that it is allowed to be more favourable than a European right? Is the act of peering through the domestic provision limited to one iteration – or can a tainted domestic provision be brought back within the scope of comparison if its ‘European’ element was itself based on an international treaty, and is therefore not ‘European’?

It might also be thought that a test of ‘juristic structure’, by which the claimant’s rights might hinge on whether an identical practical outcome is achieved by a declaratory or a constitutive act, sits uncomfortably in a branch of law whose purpose is to ensure that the enjoyment of EU rights is not hindered by formalistic constraints. And could the common-law juristic structures of English law make it materially less likely here than in other Member States that a sufficient similarity will be found – such that the principle of equivalence applies without equivalence?

The wait for an answer from the CJEU will shortly begin.