Article 267 TFEU - Case Study Example

It is difficult to defend any of the grounds on which a reference to the ECJ for a preliminary ruling under article 267 TFEU may be avoided by a court of a member state." Discuss. 1. Introduction The establishment of the European Union has been followed by a series of initiatives aiming to ensure the Union’s stability in the long term. Today, under the influence of the global financial crisis a series of interests are opposed against the Union’s role as a supervisory body of the legislative texts and agreements signed by the member states. It is in this context that grounds have appeared in regard with the potential right of a court of a member state to avoid a reference to the ECJ for a preliminary ruling in accordance with the article 267 TFEU. The above arguments should be criticized and evaluated having in mind the scope of the article 267 TFEU, the needs that this article serve but also the position of the community law in the hierarchy of laws of the member states. The examination of existing case law and the literature published on the particular issue have led to the followed assumption: member states may have the discretion to ask the ECJ for a preliminary ruling but this discretion is not absolute; in fact, this discretion refers to the choice of the phase of the case and the methods employed for submitting a referral to the ECJ – it does not reflect the freedom of the courts of a member state to completely avoid the ECJ when the interpretation of community law is required. 2. The article 267 TFEU – presentation and analysis The article 267 of TFEU sets the terms under which the national courts of member states can ask the ECJ for a preliminary ruling for cases that refer to the community law. The preliminary ruling can be given by the ECJ specifically in the following two cases: ‘(a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union’ (article 267 TFEU). The national courts have a discretion to make a referral to the ECJ when the terms of the article 267 TFEU are met; however, this discretion has limits: the national courts cannot avoid the preliminary ruling of ECJ in the context of 267 TFEU, a view that is supported by the existing case law and literature – as analyzed in the next section. It must be noted that the ECJ must respond with no delay when such a ruling is asked by the national courts of member states – this obligation of the ECJ is clearly stated in the 267 TFEU in this article’s last paragraph which was added by the Lisbon Treaty (Great Britain, Parliament, 2008, p.77); the above provision for the response of the ECJ ‘with the minimum of delay’ (Piris, 2010, p.232) refers to cases where a person is in custody; in the future, this provision would be further expanded covering all cases of critical importance brought before the ECJ in the context of article 267 TFEU. 3. Could the reference to the ECJ for a preliminary ruling be avoided? Presentation and analysis of relevant literature and case law. The fact that the potential to refer to the ECJ for a preliminary ruling is established in the article 267 TFEU leads to the assumption that the above right cannot be violated; in other words, a national court cannot avoid referring to the ECJ when the terms of the article 267 are met. In practice, the application of the above rule is often set under dispute. Arguments are developed supporting the independency of national courts at such level that the reference to the ECJ is considered as not obligatory even when this initiative is based on the terms of the article 267 TFEU. However, these arguments can be characterized as not valid; the existing legislation and especially the case law will be used to support the specific view. The literature will be also employed – as appropriate – in order to identify the grounds on which the referral by the national courts to the ECJ cannot be avoided especially when the terms of the article 267 TFEU are met. The obligation of national courts to refer to the ECJ in regard with the interpretation of community law has been highlighted in the case Reihnmuhlen v Einfuhr (1974); in the above case the following arguments are used in order to justify the necessity to refer to the ECJ when the terms of the article 267 TFEU are met: ‘a) the European Union is an autonomous legal order, b) all courts in the EU need to interpret EU law in a uniform manner and c) article 267 TFEU provides a direct relationship between national courts and the Court of Justice’ (Chalmers et al., 2010, p.152); in other words, the reference to the ECJ when the terms of the article 267 TFEU are met is not a discretion but an obligation of the judges of the national courts as the violation of the above rule could be regarded as a violation of a state’s obligations towards the European Union – as these obligations were undertaken by the entrance of this state in the Union. The importance of making a referral to the ECJ under the terms of the article 267 is emphasized in the study of Waibel (2010) where the following argument is used for supporting the necessity of the intervention of ECJ for the interpretation of community law in accordance with the article 267 TFEU: ‘article 267 TFEU is essential for the preservation of the [Union] character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all states of the Union’ (Waibel, 2010, p.474). Towards the same direction, Twigg-Flesner (2010) noted that ‘ECJ has increased significantly the effectiveness of directives as a legislative instrument’ (Twigg-Flesner, 2010, p.98); in the above study the practice of national courts to avoid make a referral to the ECJ is explained by mentioning the time required for the response of ECJ to such a claim: approximately 18 months are required for the ECJ to answer to a referral of a court of a member state in regard with the interpretation of a specific provision of the community law – as described in the article 267 TFEU. Griller et al. (2008, p.246) reveal that the decisions of national courts of member states may present inconsistencies when they refer to one or more rules of the community law, which has been wrongly interpreted by these courts – i.e. if no referral has been made to the ECJ under the terms of the article 267 TFEU. For this reason, it is suggested that national courts always make a reference to the ECJ for a preliminary ruling when cases related with the community law are brought to them. On the other hand, the ECJ cannot intervene in a case pending before the national courts unless there is a referral by these courts, i.e. the national courts need to ask for a preliminary ruling on a particular case (related with the interpretation of community law). This issue is highlighted in the study of Moens et al. (2010) where the following remarks are made: ‘a) the matters referred to the ECJ and the method of referral are left to the discretion of the national judges, b) a national court requesting a preliminary ruling must set out the reasons why such a ruling is required’ (Moens et al., 2010, p.359); the above view is aligned with the text of the article 267 – as presented above in section 3 – where a discretion is left to the national courts in regard to the stage of the case at which the ruling of the ECJ will be asked. This fact cannot lead to the assumption that the national courts may avoid the referral to the ECJ when doubts exist on the interpretation of the community law. In accordance with Fairhurst (2010) a national court should ask the ECJ for a preliminary ruling only when serious doubts exist on the interpretation of the community law; it is explained that such obligation would exist if the ‘unity or the consistency of the community law would be affected in the context of a decision taken by a national court’ (Fairhurst, 2010, p.183); in other words, the above researcher recognizes a discretion of the national courts to make a referral to the ECJ – even when the terms of the article 267 TFEU are met – up to the point that the consistency of the community law is not affected. Even under this point of view, the power of the ECJ to decide on cases that are related with the community law remains strong. The obligation of national courts to ask the ECJ for a preliminary ruling in the context of the article 267 of TFEU is also highlighted in a report of the Stationery Office/ Britain (2010); in the above report it is made clear that ‘the Commission has the power to take infringement proceedings against Member States who fail to implement legislation properly’ (Stationery Office, 2010, p.28); the avoidance of asking for a preliminary ruling under the terms of the article 267 of TFEU can be considered as such failure that can lead to appropriate measures against the member states the courts of which violated the community law – referring to the article 267 TFEU. In the case law, the reference to the ECJ is usually decided when there is no other means to have a valid interpretation of the community law – especially when the court before which the case is brought cannot identify the appropriate rule for resolving the dispute under examination. In the case of Union of European Football Associations (UEFA) v Euroview Sport Ltd the judge of the England and Wales High Court decided that he should refer the questions he had identified to the ECJ as they were critical for resolving the relevant dispute. Most commonly the issues referred to the ECJ are of critical importance not only for the community law but also for the national legal order; for this reason the identification of a ruling compatible with the existing community law is required; this is the issue in the case of Elchinov Natsionalna zdravnoosiguritelna kasa where the national court had to decide – among other issues – ‘whether a system of prior authorisation is compatible with European Union law’ (Elchinov Natsionalna zdravnoosiguritelna kasa). A common type of cases which are brought before the ECJ – through the procedure of article 267 TFEU – are those related with the Union’s fundamental rights, like the equality, the freedom of providing services, the freedom of establishment and so on. This practice is reflected in the following cases: a) Kucukdeveci v Swedex GmbH & Co. KG, b) E & F (Common foreign and security policy), c) Attanasio Group, d) Bruno & Pettini and e) Gielen v Staatssecretaris van Financià«n. 4. Conclusion One of the main characteristics of the European Union is the existence of a common framework of legal orders regulating the various political and economic activities of the member states. Even if this unity needs to be carefully protected and supported by the Union’s members there are still cases where different policies are adopted – compared to those establishing by the EU rules – by the member states. Under these terms, severe disputes are likely to appear regarding the application of legal orders like the article 267 TFEU. The European case law and the literature developed in the specific field are indicative of the current trends as of the level of acceptance of the practice introduced by the article 267 TFEU; concerns are often developed regarding the discretion of national courts to interpret the community law without making a reference to the ECJ; the nature and the framework of this discretion have been analyzed above; the unity of community law is proved to be of crucial importance for the national courts of the member states and the avoidance of the ECJ as a legislative body is rather the exception and not the rule. References/ Bibliography Chalmers, D., Davies, G., Monti, G., 2010. European Union Law: Text and Materials. Cambridge: Cambridge University Press Great Britain: Parliament: House of Commons: Foreign Affairs Committee, 2008. Foreign Policy Aspects of the Lisbon Treaty. Britain: The Stationery Office Great Britain: Parliament: House of Lords: European Union Committee. 2008. The Treaty of Lisbon: Report. Britain: The Stationery Office Griller, S., Ziller, J., 2008. The Lisbon Treaty: EU constitutionalism without a constitutional treaty? New York: Springer Fairhurst, J., 2010. Law of the European Union. London: Pearson Education Konstadinides, T., 2009. Division of powers in European Union law: the delimitation of internal competence between the EU and the member states. Kluwer Law International Moens, G., Trone, J., 2010. Commercial Law of the European Union, Volume 4 Commercial Law of the European Union. New York: Springer Piris, J., 2010. The Lisbon Treaty: A Legal and Political Analysis. Cambridge: Cambridge University Press The Stationery Office, 2010. House of Commons - European Scrutiny Committee: Eighth Report of Session HC 5-VII 2009-10. Britain: The Stationery Office Turk, A., 2009. Judicial review in EU law. Edward Elgar Publishing Twigg-Flesner, C., 2010. The Cambridge Companion to European Union Private Law. Cambridge: Cambridge University Press Twigg-Flesner, C., 2008. The Europeanisation of contract law: current controversies in law. London: Routledge Waibel, M., 2010. The Backlash Against Investment Arbitration. Kluwer Law International Legislation Treaty on the Functioning of the European Union, article 267 Case Law Attanasio Group (Freedom of establishment) [2010] EUECJ C-384/08 (11 March 2010) Brita (External relations) [2010] EUECJ C-386/08 (25 February 2010) Bruno & Pettini (Social policy) [2010] EUECJ C-396/08 (10 June 2010) Caja de Ahorros y Monte de Piedad de Madrid (Environment and consumers) [2010] EUECJ C-484/08 (03 June 2010) E & F (Common foreign and security policy) [2010] EUECJ C-550/09 (29 June 2010) Elchinov (Freedom to provide services) v Natsionalna zdravnoosiguritelna kasa [2010] EUECJ C-173/09 (10 June 2010) Gielen (Freedom of establishment) v Staatssecretaris van Financià«n, [2010] EUECJ C-440/08 (18 March 2010) Kucukdeveci (Social policy) v Swedex GmbH & Co. KG, [2010] EUECJ C-555/07 (19 January 2010) Monsanto Technology (Industrial policy) [2010] EUECJ C-428/08_O (09 March 2010) Union of European Football Associations (UEFA) v Euroview Sport Ltd [2010] EWHC 1066 (Ch) (16 April 2010) Read More