Preliminary Reference Procedure - Essay Example

?Preliminary Reference Procedure Dear………………………… It is my pleasure to render you assistance for your endeavor to explore the possibilities of higher studies in corporate laws. First of all, you need to know that the European Court of Justice (ECJ) was set up with an aim to bring equal application and interpretation of the EU laws in every Member State in the union for disputes of similar nature. The phrase you put for query, ‘Preliminary Reference Procedure’ is, according to Bromberg and Fenger (2010) a provisional terminology of the European Union law under the jurisdiction of the European Court of Justice (ECJ) that indicates the provision the national court or tribune to refer a question of the EU law to the ECJ for preliminary ruling so as to enable the national court to decide the case before it on receiving that ruling. From this angle, you can consider that the functioning of the preliminary reference procedures ensures the uniformity of interpretation and validity of the EU law across all the member states in the union. In an over view, (Harris & Horspool, 2010, pp. 3-5) the preliminary reference procedure is constituted as per the guidance of Article 267 TFEU that says that if a question is raised before any court or tribunal of a Member State, and if the court considers that the decision on the question is necessary to enable it to give judgement, that court may require the Court of Justice to give a ruling of the case thereon. Simply speaking, you can consider this as the tool of the state courts at times of critical decision makings on special issues with the consolidation of the ECJ. You need to further focus on the fact that the ECJ relies on its co-operation with national courts in taking decision on the appeal of national courts. In most cases related to such conditions, the CEJ leads the role in the decision making and the national courts go in submission to ECJ in the process of co-operation and therefore, are normally guided by the EU judiciary. The preliminary reference procedure guarantees the dominance of the ECJ as it gets the legal assistance of the EU laws system and therefore the cases handled by the ECJ sometimes provide controversial options of discretionary power to the national courts, particularly in situations related to arbitrations on employment and industrial relation disputes. For instance, if you take the disputes on issues like indirect discrimination, the EC is supportive to the benefit of employers but at the same time, this issue is sent to the national court for the review of the general principle of proportionality of the case on objective grounds. Reports and statistics may be of the effect of fading the effectiveness of the upper court’s judiciary system to decide on certain identical issues of national important, which are usually pertaining to industrial disputes; however, the system of Preliminary Reference Procedure is presently the most popular channel that connects national courts with the ECJ. For further clarity, I would like you to refer Article 254TFEU; it explains to you the validity of equality of decision making between the two courts in its original phase of inception of the law. The procedure functioned in a vicious circle that channelled the move of a question from the discretionary powers of the national court; from there, the ECJ takes into consideration, the legality of the case under the provisions of the EU law relevant to the issue and guides the national court to take the decisions accordingly. The prominence of the law-making process based on the preliminary reference procedure has been emerged as a result of the upper hand of the ECJ on the national courts whereby each decree of the ECJ becomes the decision unanimously approved and followed by other national courts in the Union (Role of National Courts inEuropean Law 8, Dec, 2006). You can thus observe that the new tendency among the national courts paved the way for the development of EU judicial system by placing the ECJ as the Apex Court. Also, this new move helped them decide on cases pending for the additional reference of the ECJ in accordance with the revisions based on the previous decisions on similar issues made by the ECJ. While pointing out the factors and praising the merits of the system so developed by the introduction of the Preliminary Reference Procedure, you need to look into the difficulties of maintaining it in conditions related to regional differences. According to Arndt (n.d.), one of such issues is the excessive focus of the ECJ on the continuous reference of the national courts on the decisions related to all the cases irrespective of their constitutional prominence. However, there are concerns that while holding the position of the Apex Court, it is inferior for the ECJ to interfere in affairs of lower court and that it should be a body dealing the cases related to constitutional distinction. There are other reasons also; for instance, the differences in the literature of the EU laws from the member states’ in its interpretation may result in misconception as the same provisions may not mean the equal concept in another language and as a result, even though the national courts refer the former decisions of the ECJ, the contextual differences may result in poor judgement of the case. However, the ECJ was keen solving this problem posed by the lingual differences by directing the lower courts to forward all the cases for its direct reference (Law teacher). The resultant effect of this strategy was effectively giving a chance to the lower court to move to the ECJ without consulting the higher courts of the country for their reference, therefore it ended up in an ideological conflict between the higher courts of different countries and the ECJ on the levels of interpretation of the EU law. And at the end, it was seen to be heading towards a troublemaking effect on the judicial hierarchies and constitutional relationship between executive and legislative branches of the administration of Member States. I believe you have clearly understood that though the development of a new policy by the European Union to settle the national and international issues within the Union with the formulation of the Preliminary Reference Procedure, it was not moving towards the fullest effect as desired by the ECJ owing to constitutional and lingual variances among Member States. Finally, I promise my sincere assistance in any of the further queries that may arise henceforth. With best regards Yours truly. References Arndt, F (n.d), ‘The German federal constitutional court at the intersection of national and European law: Two recent decisions’, German Law Journal, Viewed 22 Aug 2011, Broberg, M & Fenger, N 2010, ‘Preliminary references to the European court of justice’, Oxford University Press, Viewed 22 Aug 2011, ‘Court of justice of the European communities’, 2011, Law Teacher, Viewed 22 Aug 2011, Harris, S & Horspool, M 2010, ‘Eu Law’, University of London International Programmes, pp. 1-73, Viewed 22 Aug 2011, ‘Role of national courts in European law’, December 2006, Embuck.com, Viewed 22 Aug 2011, Read More