Preliminary Reference Procedure in Ensuring Uniformity and Consistent Development of European Union Law - Essay Example

? Preliminary Reference Procedure in Ensuring Uniformity and Consistent Development of European Union Law. Table of Contents Table of Contents Introduction 2 European Union preliminary reference procedure functions as the predominant interpretive mechanism in Union Law. Indeed, the preliminary reference procedure has been referred to as the ‘jewel in the Crown of the ECJ’s jurisdiction’ for this central position to the development of Union law (Barnard 2010, p109). It is a procedure that provides a vital contact point between the jurisdiction of the ECJ and the national courts, allowing legal issues relating legal issues that are correlated with the interpretation of Treaties to be mitigated throughout the European Union (Blackstone 2011). This preliminary ruling procedure is a unique element of the European Union legal structure. While interpretive and appellate processes are regularly aspects of most Western legal system, the European Union preliminary ruling procedure places substantial vested interest in the national courts; it is the national courts, after-all, who are the first guarantors of Union law. One notes that the all-consuming nature of this ruling is parallel to the United States Supreme Court interpretive mechanism of law, wherein this judicial body represents the ultimate view on the subject matter. Indeed, the very name preliminary ruling procedure is slightly misleading as it seemingly indicates the origination of the interpretive process when in reality it is the endpoint of law. This process emerged with the formulation of the European Union judicial system and is specifically described in the Treaty on the Functioning of the European Union (Chalmers 2011). This essay will illustrate the above considerations in two steps. First, it commences with a general discussion of the purpose and function of the preliminary reference procedure. Second, it focuses on the two main reasons why this procedure has become so significant. These will be underpinned by references that national courts have sent to the ECJ for legal interpretation procedures based on Articles 30 or 110 Treaty on the Functioning of the European Union (TFEU). 3 Purpose and Functioning of the Preliminary Reference Procedure 4 A proactive ECJ – how Article 110 TFEU occasioned the ECJs shift to primacy over national courts 5 Article 30 TFEU and the Preliminary Reference Procedure – the development of EU precedent 7 Preliminary Reference Procedure and the substantive development of the law 9 Conclusion 9 Bibliography 10 Introduction European Union preliminary reference procedure functions as the predominant interpretive mechanism in Union Law. Indeed, the preliminary reference procedure has been referred to as the ‘jewel in the Crown of the ECJ’s jurisdiction’ for this central position to the development of Union law (Barnard 2010, p109). It is a procedure that provides a vital contact point between the jurisdiction of the ECJ and the national courts, allowing legal issues relating legal issues that are correlated with the interpretation of Treaties to be mitigated throughout the European Union (Blackstone 2011). This preliminary ruling procedure is a unique element of the European Union legal structure. While interpretive and appellate processes are regularly aspects of most Western legal system, the European Union preliminary ruling procedure places substantial vested interest in the national courts; it is the national courts, after-all, who are the first guarantors of Union law. One notes that the all-consuming nature of this ruling is parallel to the United States Supreme Court interpretive mechanism of law, wherein this judicial body represents the ultimate view on the subject matter. Indeed, the very name preliminary ruling procedure is slightly misleading as it seemingly indicates the origination of the interpretive process when in reality it is the endpoint of law. This process emerged with the formulation of the European Union judicial system and is specifically described in the Treaty on the Functioning of the European Union (Chalmers 2011). This essay will illustrate the above considerations in two steps. First, it commences with a general discussion of the purpose and function of the preliminary reference procedure. Second, it focuses on the two main reasons why this procedure has become so significant. These will be underpinned by references that national courts have sent to the ECJ for legal interpretation procedures based on Articles 30 or 110 Treaty on the Functioning of the European Union (TFEU). Purpose and Functioning of the Preliminary Reference Procedure The preliminary reference procedure is contained in Article 267 TFEU. Its importance in ensuring a uniform and consistent development and application of EU Law, which is essential for the proper functioning of the European Union, is manifestly clear now (Arnull 2006). However, at its inception, its huge significance could not have been guessed. From the outset it was clear that the preliminary reference procedure was not to be considered an avenue of appeal from national court decisions (Arnull 2006). Generally the appellate process necessitates that concerned parties file the motion, conversely with Article 267 the national courts request a consideration (Arnull 2006). Further, the procedure only allows for the interpretation of the Treaty. There is no room for direct judgements on the validity of any national law (Jemielniak 2010). With this in mind, the original hierarchy that the procedure demanded was bi-lateral and horizontal (Craig and De Burca; 2011b). This implies that the ECJ and the courts of member states were originally considered equal, but they have to fulfil different functions. Rulings were delivered to those national courts that had applied for one. It was not clear that they had any wider impact or more general application (Jemielniak 2010). This hierarchy has however been shifted. The European Court is now in a superior position to national courts, which has become obvious through developments in case-law concerning the supremacy of the ECJ and by the fact that the ECJ rely on national courts to act to put EU Law into effect. In addition, it is now clear that the ECJs rulings have implications for all the member states (Jemielniak 2010). Both in questions of past procedures and the authority of the ECJ, cases brought as preliminary references in relation to Articles 30 and 110 TFEU have played a highly important role in the development of the law, as will be shown below. A proactive ECJ – how Article 110 TFEU occasioned the ECJs shift to primacy over national courts Recourse made to Article 110 TEFU resulted in structural changes to the jurisdictional interaction between the European and national courts (Broberg 2010). The ECJ's initial approach can be described as very passive. It was committed to considering any reference made by national courts, which denoted equality between the courts, which had the result of providing interpretation based on the treaties (Broberg 2010). The ECJ did exercise some limited amount of control over the preliminary reference procedure. Thus, it was able to reinterpret misunderstood legal elements, as is clear from Case 6/64 Costa v ENEL [1949] ECR 585 and Case 16/65 Firma C. Schwarze v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel [1965] ECR 877. Therefore, the ECJ developed an open approach, encouraging litigants, which allowed it to create important doctrines such as direct effect and supremacy. Nevertheless, it’s clear the ECJ views itself as the final authority on interpreting the suitability of references. This was made clear in Case 104/79 Pasquale Foglia v Mariella Novello [1980] ECR 745, which was a case concerning Article 110 TFEU. In this case, two wine sellers formed a contract, a clause of which provided that one of them, Novello, would not be liable for any taxies levied at French or Italian borders that were contrary to EC law. reference A French tax was indeed incurred and an action was promptly brought. It was argued that the charge was contrary to the provision of Article 110 TFEU and a preliminary reference was made to the ECJ. The ECJ dismissed the case as frivolous, as they decided to refrain from interpreting an inauthentic claim. However, the Italian court referred a further question to the ECJ in Case 244/80 Pasquale Foglia v Mariella Novello (No 2) [1981] ECR 3045, asking whether the ECJ’s approach was in-line with the understanding that the only person to determine the facts was the national judge. In its judgement the ECJ stated it necessarily has to be: "… in a position to make any assessment inherent in the performance of its own duties in particular in order to check…whether it has jurisdiction (now Article 267 TFEU)" ([1982] 1 C.M.L.R. 585; pp19). In effect, in this judgement, the ECJ has affected a major shift in its position in relation to the national courts. While regard was given to the findings of national courts, the ECJ itself was the final authority on which references it would deal with. No longer can the link between the ECJ and national courts could be considered as equal. Clearly, the ECJ has primacy and is in control of not only how references are framed, but which references are dealt with. The case of Foglia, based on a preliminary reference regarding the interpretation of Article 110 TFEU, allowed the ECJ to move from being a passive body providing interpretation on material, to proactively defining, shaping and developing the course and substance of EU Law (Jemielniak 2010). Article 30 TFEU and the Preliminary Reference Procedure – the development of EU precedent Article 30 TFEU and the preliminary reference procedure are cornerstone elements of EU legal precedent. It is the national courts that decide what matters to refer to the ECJ. However, as has already been discussed, the ECJ may decide not to provide a ruling on such a reference, this may be because the original claim was frivolous, or hypothetical. (Broberg 2010). It may also be that the ECJ has already ruled on very similar question prior to the reference. This much was established in Case 28-30/62 Da Costa en Schaake NV, Jacob Meijer NV and Hoest-Holland NV v Nederlandse Belastingadministratie [1963] ECR 31. In this case, the facts and the issues were identical to those of Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen [1963] ECR 1 (hereafter: "van Gend"). This case investigated if the EEC Treaty (now Article 30 TFEU) has jurisdiction within the context of a European Union member state (Broberg 2010). In answer to the question regarding Article 12 EEC (Article 30 TFEU) the Court simply states: " The questions of interpretation posed in article 12 of the EEC Treaty is identical with Case 26/62."([1963] C.M.L.R. 224; p239) From this it is clear that the case of Da Costa, which came to the ECJ as a preliminary matter relating to Article 30 TFEU, set in motion a system in which the ECJ would have regard to previous decisions it had made on the same issues – essentially, a system of precedent (Galetta 2010). Although, it must be admitted that in the case of Da Costa this principle seemed only relevant where there were both identical facts and legal issues, in reality this principle was born out in further case law. Specifically Case 283/81 Srl CILFIT and Lanificio di Garvardo SpA v Ministry of Health [1982] ECR 3415, in which the court said the following: "The same effect…may be produced where previous decisions of the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decisions, even though the questions at issue are not strictly identical."([1982] 1 C.M.L.R. 472; pp14). Therefore, the ECJ has used the preliminary reference procedure, through the vehicle of a claim brought concerning the interpretation of Article 30 TFEU, to create a system of precedent which aids a uniform application of the law in all member states. Preliminary Reference Procedure and the substantive development of the law Thus far this essay has contained a discussion of the procedural nature of the ECJ's interaction with Article 267 TFEU. However, it should not be forgotten that the preliminary reference procedure is instrumental in allowing the ECJ to lay down new substantive legal principles. One need look no further for an example than the case of Van Gend. This was the first case in which the doctrine of direct effect was articulated (Barents 2009). Today it has come to represent a seminal ruling in terms of preliminary procedure for its exploration of the limits and potential expansive nature of the process itself. At the time only Treaties were held to be directly effective, subsequently however, the principle has expanded and can now, stated generally, include virtually any form of EU legislation, so long as these are unequivocally articulated, not dependent on outside understanding, and grant a unique right to the claimant (Barents 2009). Van Gend, as described above was a case brought to the ECJ under the preliminary reference procedure on a question of the interpretation of Article 30 TFEU. It is only one instance in many of the ECJ's heavy reliance on article 267 TFEU to ensure the proper development of legal doctrines within the EU (Barents 2009). Conclusion It is clear that the preliminary reference procedure contained in article 267 TFEU is vital both to the procedural and the substantive development of EU law. Through it an interpretation of Article 110 TFEU has allowed the ECJ to become pro-active and involved in the development of EU Law, producing a fundamental shift in the hierarchical relationship between the ECJ and national courts (Arnull 2006). An application for a reference in consideration of Article 30 TFEU has allowed the ECJ to create a system to improve legal certainty for national courts, and to direct and control the evolution of EU Law. It is also clear that the preliminary reference procedure encourages the development of significant substantive legal principles, examples of which can be found in the doctrines of direct effect and the supremacy of the European Court (Jemielniak 2010). The preliminary reference procedure is therefore a vital and essential tool ensuring the uniform development of Union law, without which conformity and legal certainty would be substantially less secure. Bibliography Cases Case 6/64 Costa v ENEL [1949] ECR 585 Case 28-30/62 Da Costa en Schaake NV, Jacob Meijer NV and Hoest-Holland NV v Nederlandse Belastingadministratie [1963] ECR 31. Case 16/65, Firma C. Schwarze v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel [1965] ECR 877 Case 104/79 Pasquale Foglia v Mariella Novello [1980] ECR 745 Case 244/80 Pasquale Foglia v Mariella Novello (No 2) [1981] ECR 3045; [1982] 1 C.M.L.R. 585 Case 283/81 Srl CILFIT and Lanificio di Garvardo SpA v Ministry of Health [1982] ECR 3415; [1983] 1 C.M.L.R. 472 Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratis der Belastingen [1963] ECR 1; [1963] CMLR 105 Books Arnull, Anthony. The European Court of Justice. Oxford University Press; 2006. Barents, Rene. Directory of Case Law on the Preliminary Ruling Procedure. Wolters Kluwer Law & Business; 2009. Barnard, C. (2010) The Substantive Law of the EU; Oxford University Press; 2010 Blackstone’s; EU Treaties and  Legislation 2011-12; Oxford University Press; 2011 Broberg, Morten. Preliminary References to the European Court of Justice. Oxford University Press; 2010 Chalmers, Davies & Monti, European Union Law: Text and Materials; Cambridge University Press; 2010 Craig Paul & de Burca Catherine; The Evolution of EU Law; Oxford University Press; 2011a Craig Paul & de Burca Cathrine; EU LAW Text, Cases and Materials; Oxford University Press; 2011b Galetta, Diana-Urania. Procedural Autonomy of EU Member States: Paradise Lost?: A Study on the "Functionalized Procedural Competence" of EU Member States. Springer; 2010. Jemielniak, Joanna. Interpretation of Law in the Global World. Springer; 2010. Read More