Patrick Kelly v National University of Ireland (University College, Dublin).
Date: 2011-07-21
25. Being unsure as to whether refusal of the disclosure request is contrary to European Union law, the High Court referred the following questions to the Court for a preliminary ruling:
‘1. Does Article 4(1) of Council Directive 97/80 … entitle an applicant for vocational training, who believes that he or she has been denied access to vocational training because the principle of equal treatment was not applied to him or her, to information on the respective qualifications of the other applicants for the course in question and in particular the applicants who were not denied access to vocational training so that the applicant can “establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination”?
2. Does Article 4 of Council Directive 76/207 … entitle an applicant for vocational training, who believes that he or she has been denied access to vocational training “on the basis of the same criteria” and discriminated against “on grounds of sex” in terms of accessing vocational training, to information held by the course provider on the respective qualifications of the other applicants for the course in question and in particular the applicants who were not denied access to vocational training?
3. Does Article [1(3)] of Council Directive 2002/73 … prohibiting “direct or indirect discrimination on the grounds of sex” in relation to “access” to vocational training entitle an applicant for vocational training, who claims to have been discriminated against “on the grounds of sex” in terms of accessing vocational training, to information held by the course provider on the respective qualifications of the other applicants for the course in question and in particular the applicants who were not denied access to vocational training?
4. Does the nature of the obligation under paragraph 3 of Article 267 TFEU differ in a Member State with an adversarial (as opposed to inquisitorial) legal system and, if so, in what respect?
5. Can any entitlement to information under the aforesaid directives be affected by the operation of national or European laws relating to confidentiality?’
Consideration of the questions referred
The first question
29. Directive 97/80 provides in Article 4(1) that the Member States are to take such measures as are necessary to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of that principle (see Case C‑196/02 Nikoloudi  [2005] ECR I‑1789, paragraph 68).
30. Thus, it is the person who considers himself to have been wronged because the principle of equal treatment has not been applied to him who must initially establish the facts from which it may be presumed that there has been direct or indirect discrimination. It is only where that person has established such facts that it is then for the defendant to prove that there has been no breach of the principle of non-discrimination.
31. In that regard, it is apparent from recital 13 in the preamble to Directive 97/80 that the appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with national law or practice.
33. Nevertheless, it must be stated that Directive 97/80, pursuant to Article 1 thereof, seeks to ensure that the measures taken by the Member States to implement the principle of equal treatment are made more effective, in order to enable all persons who consider themselves wronged because the principle of equal treatment has not been applied to them to have their rights asserted by judicial process after possible recourse to other competent bodies.
34. Thus, although Article 4(1) of that directive does not specifically entitle persons who consider themselves wronged because the principle of equal treatment has not been correctly applied to them to information in order that they may establish ‘facts from which it may be presumed that there has been direct or indirect discrimination’ in accordance with that provision, the fact remains that it cannot be excluded that a refusal of disclosure by the defendant, in the context of establishing such facts, could risk compromising the achievement of the objective pursued by that directive and thus depriving that provision in particular of its effectiveness.
35. In that regard, it must be borne in mind that Member States may not apply rules which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness (see Case C‑61/11 PPU El Dridi  [2011] ECR I‑0000, paragraph 55).
36. According to the wording of the second and third subparagraphs respectively of Article 4(3) TEU, the Member States inter alia ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ and ‘shall … refrain from any measure which could jeopardise the attainment of the Union’s objectives’, including those pursued by directives (see El Dridi , paragraph 56).
50. Having regard to the answer to the first three questions and given that, under the procedure laid down in Article 267 TFEU, the Court has no jurisdiction to interpret national law, that task being exclusively for the national court (see Case C‑53/04 Marrosu and Sardino [2006] ECR I‑7213, paragraph 54, and Joined Cases C‑250/09 and C‑268/09 Georgiev  [2010] ECR I‑0000, paragraph 75), the fifth question must be understood as meaning that the national court asks, in essence, whether any right to rely on one of the directives referred to in the first three questions, in order to obtain access to the information held by the provider of vocational training concerning the qualifications of the applicants for that course, can be affected by rules of European Union law relating to confidentiality.
Arguments of the parties
61. Article 267 TFEU confers on national courts the power and, in certain circumstances, an obligation, to make a reference to the Court once the national court considers, either of its own motion or at the request of the parties, that the substance of the dispute involves a question which falls within the scope of the first paragraph of that article. It follows that the national courts have the most extensive power to make a reference to the Court if they consider that a case pending before them raises issues involving an interpretation or assessment of the validity of provisions of European Union law and requiring a decision by them (see, inter alia, Case C‑210/06 Cartesio  [2008] ECR I‑9641, paragraph 88, and Joined Cases C‑188/10 and C‑189/10 Melki and Abdeli  [2010] ECR I‑0000, paragraph 41).
62. Moreover, the Court has already held that the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States institutes direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties (see, inter alia, Cartesio , paragraph 90).
63. In that regard, the system of references for a preliminary ruling is based on a dialogue between one court and another, the initiation of which depends entirely on the national court’s assessment as to whether a reference is appropriate and necessary ( Cartesio , paragraph 91).
65. Although that court is at liberty to request the parties to the dispute before it to suggest wording suitable for the question to be referred, the fact remains that it is for it alone ultimately to decide both its form and content.