You have been working on some very notable cases in the last year that appear to have wide reaching implications. What can you tell me about these?
I recently had a hearing before the European Court of Justice in a broadcasting case in which I acted for a pub landlady who has been convicted of a criminal offence for showing Premier League matches at her pub through a Greek satellite broadcaster. In the UK Sky has the sole rights to broadcast the Premier League and my client was convicted on the basis that she had avoided making a payment for the satellite service. In fact she hadn’t avoided paying for it at all as she had paid the Greek broadcaster. She appealed, arguing that her conviction was contrary to EU law on the free movement of services and the High Court made a reference to the European Court. We expect the judgment sometime next year and it will have significant implications for broadcasting generally; in particular, on whether sports rights and film rights can be sold on a country by country basis. The European Court will have to weigh up the copyright interests of those selling rights against the right of consumers to buy broadcasting services from other Member States and decide which is more important.
That case shows how important EU law can be for individuals and not just for businesses. The same is true of a case I did earlier in the year where I represented a transsexual woman who was denied a pension at the age of 60 (the age applicable to women) and was told she would have to wait until she was 65. The government refused to recognise the fact that she was now a woman because she had not divorced the woman she had been married to for more than 40 years. The (to my mind, objectionable) requirement that she divorce is one that is contained in the Gender Recognition Act 2004. But my client’s case pre-dated that Act and we argued that the condition could not be applied to her. The Court of Appeal agreed and found that my client had directly enforceable rights to her pension from the age of 60 under the EU Equal Treatment Directive.
A fascinating recent development is the EU Charter of Fundamental Rights which was made binding by the Lisbon Treaty. I have recently been instructed by the UNHCR to work as part of a team of barristers in a case called Saeedi which is pending before the European Court. One of the questions is whether the Protocol to the Charter signed by the UK amounts to an opt-out (as the government claimed at the time) or whether the Charter is fully applicable in the UK courts.
I understand you spent three years at the European Court of Justice in Luxembourg. How has such an experience helped shape you as a practitioner?
I worked at the European Court as a referendaire to Judge Edward who was then the British Judge. I loved my time there. It gave me a different perspective on European law as I saw cases from the judge’s viewpoint. And I enjoyed the environment; lawyers from all Member States working collaboratively rather than against each other as we mostly do at the Bar. It has definitely helped me become a better practitioner because I saw for myself what style of advocacy was thought by the judges to be persuasive and what didn’t go down so well!
I often thought of EU law as a specialism. I’m intrigued by how you can work on both commercial and judicial review, public law and competition cases, whereas solicitors would have had to choose one route.
People often think it is a specialism but EU law is very broad. It covers everything from human rights, free movement, competition law telecoms, the list goes on. I think barristers are lucky: because we’re self-employed, we don’t have to specialise too narrowly if we don’t want to. Personally, I feel fortunate being at Brick Court Chambers because we have three main areas of work: commercial, EU and public law and so we’re able to offer clients “mixed teams” of barristers to suit the particular case. For example, a recent and sensible trend is to have a commercial barrister working with an EU barrister on competition damages cases. These are often in the Commercial Court and can raise points of jurisdiction and procedure which commercial barristers are very used to dealing with.
What is the single most important piece of new EU legislation in terms of potential impact on English law?
Undoubtedly the Charter of Fundamental Rights. It lays down a very full catalogue of rights going well beyond those in the European Convention on Human Rights. And so it could transform English public law in a similar way to the Human Rights Act.
Marie Demetriou was interviewed by Guy Hewetson, LPA Legal