The Simulated Client: The Illustration That Bamboozled The Cjeu
November 25, 2018
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Steve Peers
A plucky immature lawyer, fighting impossible odds. Influenza A virus subtype H5N1 large corporation, shamelessly manipulating the system. Influenza A virus subtype H5N1 vulnerable client, screwed yesteryear that same corporation. Influenza A virus subtype H5N1 slick corporate police firm, smugly carrying out that company’s instructions. And a quirky judge, trying to his or her best to maintain monastic tell inwards the courtroom regardless of whatever shenanigans.
For over 20 years, these possess got been the marrow elements of many of John Grisham’s best-selling novels. His characters rarely exit the Southern the U.S. of A. – unless the plot demands a quick, sleazy journeying to a Caribbean Area island. Could they endure transplanted to Europe?
Grisham’s book Playing for Pizza is indeed laid inwards Europe. But it’s a sports story, nigh a disgraced American footballer eating his means through Italy. Instead, nosotros possess got the recent existent life illustration of ‘Chain’, documented yesteryear Irish Gaelic journalists Liam O’Brien too Frank Shouldice (radio version here; online story here). It contains many of the substitution elements of a Grisham page-turner – but amongst or so twists worthy of his best books. (Please banking company annotation that or so of the allegations inwards their even out possess got been disputed).
The even out begins amongst Mr Bogdan Chain, our vulnerable client. In 2009, he began several years’ locomote for Atlanco Ltd, a Cypriot subsidiary of an Irish Gaelic recruitment company, Atlanco Rimec – our large corporation. He was posted to several European Union countries, equally good equally Norway, exterior the European Union but applying European Union gratis displace laws. Working inwards dissimilar European Union countries is liable to create complications from the dot of consider of social security, too at that spot is complex European Union legislation intended to address this issue. But it did non apply equally intended inwards Mr. Chain’s case.
His troubles began when the Norwegian regime pursued him for unpaid contributions, fifty-fifty though his payslips indicated that those contributions had been deducted from his pay. Then they got worse: he had a pump attack, too became unable to work. He applied to the Polish regime for disability pay, which he believed he had qualified for based on his contributions. But similar the Norwegians, the Polish authorities said he hadn’t made sufficient contributions – too so denied him benefits.
So did Mr. Chain larn to courtroom to challenge this? Well, he did – too he didn’t. The real Mr. Chain insists that he did non larn to court. But a lawsuit against Atlanco Ltd was nonetheless instigated inwards his name, without his consent or knowledge. Would the illustration possess got benefited him, if he had “won” it? It’s difficult to know, but inwards whatever lawsuit it’s non appropriate to select cases without the “plaintiff’s” consent.
The so-called “Chain” case, concerning the menstruum he worked inwards Romania, went source to the Cypriot courts, too was too then referred to the CJEU. According to the press story, this illustration was indirectly related to or so other illustration too then pending inwards Cyprus, inwards which Atlanco sued the Cypriot regime to allow it pay social insurance for its staff inwards Cyprus, rather than inwards other European Union countries. Companies would prefer to pay social insurance inwards Republic of Cyprus because rates are low. But equally a consequence, the contributions into the social safety systems inwards other Member U.S. of A. are reduced; too there’s a adventure (manifest inwards this case) that equally a final result of such disputes, a company’s employees cease upwardly on the claw for contributions which they idea they had made, too are denied benefits which they idea they were entitled to, precisely when they demand them most.
We don’t possess got whatever plucky lawyers inwards this case, since (according to the press story), documents disclosed to a criminal investigation inwards Republic of Cyprus present that the same police firm was linked to both sides of the “Chain v Atlanco” illustration (acting for the corporate parent; that police theatre denies this). But nosotros produce possess got plucky journalists: O’Brien too Shouldice, who came across the existent Mr. Chain when researching the faux case.
That was the source Mr. Chain knew of the illustration brought inwards his name. He too then informed the CJEU that he had non authorised that legal action. But the quirky judges inwards the Court went ahead too held a hearing anyway. There was fifty-fifty an Advocate-General’s opinion. By that point, however, the Cypriot authorities, later Mr. Chain had contacted them, had ensured that the illustration was withdrawn dorsum inwards Cyprus, too so the CJEU too.
Recent Grisham novels possess got ended ambiguously, amongst substitution plot points non resolved. As things stand, that’s the illustration hither too. According to the press story, the Atlanco grouping of companies has gone bust; the Irish Gaelic founder of the parent companionship is counting his money; too the Cypriot regime has opened a criminal investigation. To my knowledge, the Belgian authorities possess got non asked the police theatre to clarify its position. And Mr. Chain soundless has no disability benefits.
Comments
First of all, congratulations to the journalists inwards this case, for an splendid locomote of investigative journalism. It’s fortunate that due to their efforts, the dubious nature of these proceedings came to lite earlier the CJEU could hand a judgment. But how did this illustration larn so far inwards the source place?
My principal focus hither is the seat of the Court of Justice. Was its behavior inwards this illustration appropriate? (I should banking company annotation that the Court appears to possess got issued no formal statement. I possess got asked the press share if it volition produce so, along amongst or so detailed questions, but so far possess got had no reply. Suffice it to say that I think it’s a error for the Court non to comment when serious questions are raised nigh the bear of its proceedings).
In my view, the Court can’t endure expected to systematically banking company check the bona fides of the parties inwards each illustration referred from national courts. The Court does non possess got the institutional capacity to produce this, too whatever displace to modify that would subvert the nature of the preliminary ruling system, which is essentially a national physical care for which is temporarily interrupted to inquire the CJEU or so European Union police questions. It’s the national court’s chore to banking company check that proceedings are genuine, too should rest so. Here at that spot was patently a slip-up inwards allowing the illustration to drib dead on inwards Cyprus, although it was corrected in ane lawsuit the alleged impersonation came to light.
According to the journalists (in individual correspondence), the CJEU too the national courtroom had no noesis of the documents suggesting links betwixt the “opposing” parties inwards this case, until the criminal proceedings were opened recently. So neither courtroom tin hand the sack endure criticised on that score. But should the Court possess got terminated proceedings in ane lawsuit Mr. Chain told them that he didn’t authorise the illustration to endure brought inwards his name?
In my view, no, for 2 reasons. First of all, over again nosotros possess got to remember the nature of these proceedings. It’s for the national courtroom to create upwardly one's heed whether a illustration is admissible earlier it. Mr. Chain was effectively alleging a flaw inwards the national proceedings, too so the Court was right to refer him to select a electrical load at the national degree instead. (The EuObserver even out doesn’t advert that the Court suggested he produce this, but the journalists possess got confirmed inwards individual correspondence that it did).
Secondly, withdrawing the illustration straight away on the footing of Mr. Chain’s missive of the alphabet would hand ascension to or so other type of impersonation risk. To run into what I hateful yesteryear this, accept a aspect at the Philip Morris case pending earlier the CJEU, inwards which the large cigarette companionship is challenging European Union legislation on cigarette packaging too composition. An Advocate-General’s sentiment inwards this illustration is due tomorrow.
It in all probability wouldn’t accept much endeavor for me to discover out the names of the lawyers representing Philip Morris, too to mock upwardly or so faux letterhead amongst a bogus signature at the bottom informing the Court of Justice that “my” customer is no longer interested inwards pursuing this case. Someone powerfulness fifty-fifty possess got tried a stunt similar this before. In lite of this, it’s quite understandable that the Court would non but dismiss the case, but hold off to listen what the national courtroom had to say.
So was the Court’s response flawless? Not at all. Mr. Chain is clearly non a huge international corporation, amongst the resources to pay slick corporate police firms who are fully aware of the nuances of the European Union judicial system. It’s understandable that he went to the CJEU since the illustration had been lodged there, too was confused nigh how to drib dead on when it referred him to the national court. Keep inwards heed that this illustration was non fifty-fifty brought inwards his ain legal system.
Therefore, patch the CJEU should non possess got withdrawn the illustration instantly later hearing from Mr. Chain, it could possess got done to a greater extent than than precisely refer him to the national court. In particular, it should possess got told the representatives of the parties of his allegations too asked them to comment. Perhaps ane or both parties would too then possess got run for the hills, too the Court could possess got drawn the obvious conclusions from that. The Court of Justice should also possess got informed the national courtroom of the allegations, since (as I possess got said already) that courtroom was best placed to examine them, patch Mr. Chain was non good placed to contact that courtroom himself.
Instead, the Court of Justice ploughed total speed ahead amongst a bogus case, embarrassing itself too wasting fourth dimension too money. Some powerfulness fifty-fifty possess got darker suspicions nigh the Court’s integrity. For those reasons, the Court should swiftly number a populace admission too apology, too brand the uncomplicated reforms I possess got suggested above.
Unlike the journalists who uncovered this faux case, I wouldn’t say that the Court was ‘complicit’ inwards this dubious litigation. But I believe the give-and-take ‘complacent’ is richly deserved. The EU’s citizens rightly await amend from the Court.
Barnard & Peers: chapter 10
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