The Doctrine of Acte Clair in the Context of National Courts - Research Paper Example

? Law By of Institute Introduction The European Union Law (EU) is a body of regulations that takes precedence from national laws of member countries. It aims at providing guidelines on how to go about the process of economic and social integration of member states. This unity was in a bid to improve terms of trade by having free borders and working towards an adoption of a single currency. The EU law was thus formulated to serve the joint interests of member states in the union and reconcile varied opinions from member states about matters pertaining to deliberation of justice. It therefore has some certain procedure to be followed. The procedure here is reference rather than precedence since any national court in the union does not take any precedence from the EU law. An example can be taken from the procedure provided for by Art 267 TFEU (Art 234 EC: Art 177 EEC) 1which suggests a system of co-operation between national courts and CJ within their respective jurisdictions (laid out by the article), not a hierarchical system2. The two courts should always act as equals in addressing legal matters. For instance, a national court of a member state decides whether and or when to refer a question of EU law to the Court of Justice (CJ). The CJ gives its advice on the point of EU law, returns this advice to the national court and the national court decides the case it is hearing. Under such circumstances, the CJ gives its advice with regard to EU law to the national court. The final decision rests with the national court. “The cooperation between the courts of the Member States of the EU and the Court of Justice of the European Communities has proved to be one of the sturdiest pillars of the Community legal order3…that (preliminary reference)4 system is the keystone of the Community court system.” When can a national court seek advice on? CJ’s jurisdiction under Art 267 (1) TFEU (Art 234(1) EC: Art 177(1) EEC) A national court can ask the CJ questions pertaining to interpretation of the EU charter5. It can also ask the CJ to give rulings on the interpretation of the Treaty and Acts of the EU institutions6. The CJ can be asked questions on the validity of Acts of the EU institutions - not on the validity of the Treaty though, or be asked to give rulings on such Acts7. In practice, as only the CJ can rule on the invalidity of EU law, any such question must be referred to it by the concerned national court. This function of the CJ is enshrined in the EU charter. Art 256(3) TFEU (Art 225(3)EC: Art 168(a) EEC) specifies the General court’s authority that it shall have the ‘…jurisdiction to hear and determine questions referred for preliminary ruling under Art 267 TFEU, in specific areas…’8 Moreover, the CJ can only interpret EU law. It cannot interpret national law nor pass comment on the compatibility of national law with EU law. A good example can be found in the case of 6/64 Costa v ENEL [1964] ECR 5859. If CJ is asked a question raising the compatibility of national law with EU law, it has the duty to reformulate the question into one just of EU law – see eg26/62 Van Gend en Loos [1963] ECR 1. In C221/89 ex p Factortame [1992] QB 68010. Nevertheless, even though expressed in abstract terms, the CJ gives a clear ruling that UK law is incompatible with EU law. Additionally, the CJ can only rule on the interpretation of EU law not on the application of it by the national court in the particular case11. However, often the guidance given by the CJ is so specific that it equates to application, for example as seen in C392/93 R v HM Treasury ex p BT[1996] ECR I 1631:12. Despite the fact that the national courts can verify whether or not the conditions of state liability for a breach of Community law are fulfilled, in the present case the court (ECJ) also has all the necessary information to assess whether the facts amount to a sufficiently serious breach13. This is not to imply that the states cannot do that but no one can be his own judge. In spite of the fact that the CJ has a duty to interpret the EU law, at times it resolves not to answer questions brought before it if it feels the cases are have not risen naturally but created to question laws of certain countries. Italian case, a case of two Italian parties in which, one was a wine producer and one a wine exporter. Question arose regarding the legality of a French duty imposed on the importation of wine. CJ was expected to answer the French law was compatible with EU law on free movement of goods but it employed Folgia approach14. Foglia approach was applied also in C83/91 Meilicke [1992] ECR I 487115 and C318/00 Bacardi-Martini SAS v Newcastle United Football Company Ltd [2003] ECR I 90516. Ruling by CJ: Effect of Art 267 TFEU (Art 234 EC: Art 177 EEC) Article 267 TFEU provides that the CJ of the European Union shall have jurisdiction to give preliminary rulings concerning the interpretation of the treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. In case c-104/79 Fogla vs Novello, the CJ failed to see genuine dispute in the case as the complainant appeared to question the validity of another nation’s law17. In case C-318/00 Bacardi at 40 -53, the operative part of the judgment was ruled that on such grounds as presented by disputing parties, the court answered in response to the raised questions. A question was referred to the court by the Oberlandesgericht Innsbruck by order of February 1st 2000. The court had then interpreted that the owing to the fact that the authorities of a member state did not appear to ban any demonstration, under circumstances such as those of the main case, is was incompatible with Articles 30 and 34 of the EC Treaty18. Contrastingly, the ruling on 283/81 Cilfit at 8 – 15 seem to unravel another special circumstance in the interpretation of Art.267(3). In this ruling, the ECJ held that courts or tribunals, as referred to in this article, have a similar discretion just like a national court or tribunal to hear and rule whether questioning a dispute is actually necessary for the courts to give judgment. The court therefore concluded that a national court would not have to seek a preliminary ruling when a matter is either too obvious, irrelevant or has been interpreted before. The doctrine of acte clair applies in the context of national courts that in the event that any such question is raised in a case pending before a court or tribunal of a member state, against whose decisions there is no judicial remedy under national law, then that court or tribunal shall bring the matter before the Court. Reference TFEU 267 (Art 234 EC: Art 177 EEC. Bacardi-Martini SAS v Newcastle United Football Company Ltd [2003] ECR I 905. Bebr, The Possible Implications of Foglia II, 1982 CMLRev 421. CJ, Information for Press No 24/09, 24/3/09, Symposium of Presidents of Member States Constitutional and Supreme Courts, Reflections on the Preliminary Reference Procedure) Costa v ENEL [1964] ECR 585.6/64. Douglas-Scott, Constitutional Law of the EU, 2002, ch. 6. European Constitutional Law Network, Berlin 2005 Conference – articles by Lenaerts; Azizi; Baudenbacher; Zemanck; Wernicke on preliminary references. Fairhurst, J. Law of the European Union, 8th edn., 2010.. Harlow: Pearson Longman, 2006, Ch.6; Komarck, In the Court(s) We Trust? On the Need for Hierarchy and Differentiation in the Preliminary Reference Procedure, 2007 ELRev 467. Lasok, Use and Abuse of Art 177, 1993 SLR Aut 34. Lefeve, The interpretation of Community law by the Court of justice in areas of national competence, 2004 ELRev 501. Poltorak, RationeTemporis application of the preliminary rulings procedure, 2008 CMLRev 1357. R v HM Treasury ex p BT [1996] ECR I 1631: C392/93. Tridimas, Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure, 2003 CMLRev 9. Wyatt, Following up Foglia: Why the Court is Right to Stick to its Guns, 1981 ELRev 447. Read More