Discretion Granted to National Courts in Relation to the EU Legal Order - Essay Example

? Discretion Granted to National Courts in Relation to the EU Legal Order Number: Due: Introduction According to Article 234 of the European Courts Treaty, the European Court of Justice (ECJ) has the rights and obligation to ensure that the laws that are established by the member states of the European Union has the same meaning and it is effected in the same way to all the member states. However, since the formation of the European Union that has more than 27 member states and a variety of legal systems, it is clear that the national laws of the different states might develop in different ways among the member states (Arnull, 1993). However, in order to create uniformity among the European Union legal system, a body was created that would be used to interpret the European Union law. The body that was named as the European Court of Justice (ECJ) that enables the national courts to refer to it. The preliminary reference procedure has been essential in designing the fundamental principles of the national legal system, the unity of the member countries, and the development and maintenance of the national laws. In Article 234, the Court has the powers to give preliminary rulings in a request from the national courts. The preliminary rulings might be about the interpretation of the Treaty, the legality and the interpretation of the actions of the member countries and the European Central Bank. The national courts have therefore a vital role to play in the administration and how the community law is implemented. However, the European Union Treaty does not precisely define “the national court or tribunal”. Nevertheless, it is vital to know that the national laws of the member states do not depend upon the definition of the tribunal or national courts by the European Court of Justice. The Court has the role to define the national laws of a given community. Most of the bodies in the member states that make decisions on legal matters refer to the ECJ, but not in all cases (De La Mare, and Donnelly 2011). In this paper the definition of the national courts is provided in relation to Article 234, different bodies which have the powers to refer to the European Court of Justice under Article 234. Moreover, different cases shall be looked upon in the preliminary ruling procedure (Arnull, 1989). The Right and Obligation to Refer Cases The case of Vaasen- Gobbel came up with the decision to define the national court in order to find a way to refer to the ECJ. The case was held by stating that any body making a reference to the European Court of Justice must satisfy a number of criteria: It first need to be established by law, must have a permanent existence, it must be in a position to practice a lasting jurisdiction, must work under the rules of the Community law and its procedures and should apply the rule of law. The Court therefore had to extend the stated criteria to apply to the national courts so that they would be independent (Komarek, 2005). Several other cases including the De Coster Case, enabled the college which previously had the powers concerning the local tax proceedings and never operated on its own nor made its own decisions regarding the process later satisfied the criteria to operate as an independent body. The De Coster and CLIFIT cases demonstrate the national courts that have the powers to give judgment in relation to article 234 of the European Court of Justice (Komarek, 2007). Even though the case regarding the definition of the court or tribunal that satisfies the previously defined criteria for an independent body is at times inconsistent and therefore provides a room for some critics to disagree on which bodies are to refer cases to the ECJ. However, in order to solve this problem of disagreements, the European Court is coming up with the preliminary reference procedure that would be used by all judicial bodies while they might be dealing with cases involving the Community law (Maher, 1994). On the facts of the case, the De Coster and the CILFIT cases demonstrate the independence and the permanence of the judicial bodies that are established by law and working with the government approval. However, reference of cases is not limited to cases where one of the parties is not satisfied with the ruling of the case concerning the legality of the Community law. Reference is also possible in cases where the national court or tribunal raises questions in relation to its own accord. This approach where one of the parties can raise issues in case of dissatisfaction can be further be demonstrated in the CILFIT case. In this case, the Court solves the matter by looking at both positive and negative parts of the case (Rasmussen 2000). In this case, the Court does not however consider that any party that raises the question is in reference to Article 234 of the European Union and the rule of the any case is against the misinterpretation of the Community law. Nevertheless, a national court might refer a case to a Court of Justice in its own decision. However, in regard to “Acte Eclaire” doctrine which shows that there would be no need to refer a question that has already been decided by the European Court of Justice in a previous case and that the ruling is deemed clear and free. This is the only exception to the reference made to cases in the European Court of Justice. Under Article 234 of the ECJ, any case that is referred by the national court is the same case that can be referred to by any other national court of another member country. The situation where a case cannot be referred to the ECJ was first established on the DA Costa and later in CILFIT. This case involves answering a question by a jurisdiction that is similar to another that was raised in a similar preliminary ruling (Mancini, & Keeling 1991). While ruling on this case, the Court accepts that there was a discretion to refer to the similar question that has already been answered in a similar reference in a previous ruling. In such a case, the national court has the power to rule depending on the last ruling rather that giving their own judgment. The Da Costa and the CILFIT cases moreover give the national courts the right to rule depending on the similarity of the cases in the previous ruling since the Court had established the exemption of any party that is not satisfied with the ruling of the national court. Nevertheless that any party that raises a question of the Community law should be deemed irrelevant to the European Court of Justice, that the question has already been decided by the European Court of Justice, and that the interpretation is correct and hence there is no reason for doubt. Thus irrespective of the kind of questions raised the national court has the right to refer to the previous rulings (Rasmussen, 1984). Acte Clair Doctrine and its Reception by UK Courts The European Court of Justice defines the “Acte Clair” doctrine and gives the national court the power not to refer any issue if the ruling is clear and fair and does not raise any doubts. This doctrine was introduced mainly since most of the national court never made any reference to the Article 234 of the European Court of Justice most often citing that their ruling was obvious. However, the Article 234 does not precisely define the “Acte Clair” doctrine but its inclusion was as a result of the judicial activism of the European Court of Justice (Tridimas, 2003). This Doctrine came from the French law, and the doctrine has been used in a number of cases including the De Coster and the CILFIT cases. Preliminary Reference and the National Court The preliminary reference is the protocol or the rules that are exercised before the European Court of Justice. This procedure is important since it gives the national courts the opportunity to question the European Union Court of Justice on matters concerning the Community law. The reference to the preliminary ruling is part of the preliminary ruling process. The preliminary ruling is free to all the judges from the European Union member states. They might ask for an interpretation of a case that has not yet been decided on or help on the interpretation of a question (Arnull, 1993). Unlike other judicial processes, the reference of a preliminary is only a question to the European Court of Justice on the validity of the Community law. Through this form of practice, there is the cooperation between the national courts and the European Court of Justice on the uniformity and effective application of the European law. Nature of References for a Preliminary Ruling Most of the cases referred to the European Court of Justice are those that raise questions over the validity of the European law and thus the Court of Justice is the only body to resolve the issue. With regard to this there are two types of preliminary reference: There can be a reference for a ruling on the interpretation of the European understanding of a point, this would be helpful for a given judge in the national court to be able to make a ruling through proper application of the clarification from the European Union Court (Maher, 1994). Nevertheless, the reference to the European Union Court can be made by a national court so that the courts can know the legality of a certain issue or question. The question that is often referred to the European Court is an indication that there is mutual communication between the national court’s judges and those of the European Court of Justice. However, some of the parties involved in a dispute in the national court might decide to request a clarification from the European Union court but this rests in the hands of the judges of the national courts. Under Article 267 of the Treaty that binds the members of the European Union, the national courts have the jurisdiction for a preliminary ruling in case one of the parties might want it so (Mancini, and Keeling 1991). However, the national courts that do not fulfill the criteria of independence as specified by the national courts are not required to refer their cases to the European Union court of justice. In the other cases, all the courts have the obligation to refer their cases to the European Union Courts for clarification in case of a dispute. The European Union court does not however decide on the case but gives a decision on the dispute and therefore the national court still remain the final institution to make the ruling. The European Court of Justice works within specified principles that enable it to answer the questions that it has been asked to clarify. The court cannot refuse to answer or give a clarification on the matter but if the question falls outside its area of competence then it can refuse to respond to it. Scope of Preliminary Rulings The decision made by the Court of Justice in a given matter is bound on all the member states and not only to the national court that raised the question. With this therefore, the uniformity is ensured regarding similar questions. In case the question raised to the Court of Justice concerns validity and the decision has been that the question is invalid affects all the national courts of the member states with similar questions. Thus the competence of the European Union Courts is tested here and should come up with the necessary measures to rectify the situation. European Union Judicial Politics There are no clear instances of the judicial politics in the European Union. Any evidence concerning the same must however include the analysis on where and when such incidences take place. In referring a matter to the European Union Court often involves a choice when other alternatives are available and these choices therefore set the conditions under which the European Union politics begin. Doing against the normality by the national court judges, the identity of the norms by the public, and the judgment itself by the national courts are all seen as the cause of the judicial politics (Komarek, 2005). The issue of litigated norms often dictates the relationship of the European Court of Justice and the varied parties in the member countries. The national courts and the European Union court provide the need for judgment, the way the questions that are to be referred are framed, and the experience needed to handle cases by judges through arguments. How judgment is concluded is a determining factor of the disputes that might arise and this is a problem for the lawmakers on how certain policies should be implemented without disputes. Therefore the interdependence of the national courts and the European Court has led to the rise of politics in a number of areas such as: The final decisions by the lawmakers to implement a certain clause of the European Union law might be a cause of concern, the decision by parties to involve the Court of the European Union through the preliminary reference also is a problem and the judicial decision itself can give rise to arguments from different parties involved (De La Mare, and Donnelly 2011). The relationship between the above causative factors brings different ways of interactions among the people involved. Therefore, involving the Court of Justice in decision making can be beneficial and this would involve a variety of references from different areas. It is clear that before any decision concerning the questions referred to the European Union Court is made, there are a series of negotiations in order to reach a consensus about a given issue and sometimes this might take quite a long time. The concerned parties might not understand this and most of the scenarios it so happens the national court judges are seeking expertise on the matter and politics might come in the process. Functions of the ECJ The European Court of Justice has been very vital to the member states since its formation. It is clear that different countries might adopt and make decisions in different ways; different questions might be interpreted in different ways and applied in a different way, through the control of national courts. However, with the establishment of the ECJ, the law is implemented and decisions done in a uniform manner. Most judgments in the national courts are done in accordance with the amendments made in the European Court of Justice. Through the clarification of different issues that are being referred to the ECJ, the Courts therefore play a vital role (Tridimas, 2003). The Court of Justice under the Treaties signed by the member states makes a rule on the actions that are brought forward by the member countries, interpret the Community law or the legality or validity of the actions of the various institutions in the member countries, and rule other cases as stipulated under the Article 19 TEU being part of the Treaty of the member countries. Since the Court of Justice is the highest court of the European Union, ensures that all the member countries follow the European law in addition to ensuring that it is the same in all the member countries. It has been observed that most of the member countries interpret the law in their interest and culture this law has been helpful. Since the Court of Justice is referred in the preliminary process ruling it thus acts as the “legal council” whose opinions need to be used to solve the issues of the concerned parties (Maher, 1994). The court of Justice moreover, reviews the actions of the European Union member countries. The “proceedings for annulment” might be brought against the decisions made by the national courts of the member countries. Thus these proceedings are aimed at nullifying the actions of the national courts that are against the provisions of the Treaties. The Court of Justice also rules for the proceedings in the member states that are done against its Treaties. Cartesio Case and the Preliminary Ruling This presents a domestic case in Hungary where the national court had to rule against the requirement that it was to seek preliminary reference from the Court of Justice. In this case, however, the ECJ was never involved in its functions under ex Article 234 TEC. The ECJ that was to provide the ruling of the case under Article 234 of the EC Treaty was never observed by the Hungarian Supreme Court. Kobler Case and the State Liability for Breach of Community Law The ECJ’s role in the enforcement of the European Community law should be demonstrated by the member countries. In this case, Kobler was judged on the breach of the of EC law by the judiciary a function that the ECJ had affirmed before (Komarek, 2005). References Arnull, A. (1993).”The Evolution of the Court Jurisdiction”. Article 177, 18 ELRev 129 Arnull, A. (1989). “The Use and Abuse”. Article 177, 52 MLR 626 De La Mare, T. & Donnelly C. (2011). “Preliminary Rulings and EU Legal Integration: Evolution and Stasis”. Library Journal, Oxford, Oxford University Press Komarek, J. (2005). “Federal Elements in the Community Judicial System: Building Coherence In the Community Legal Systems”. Online Journal, 42 CMLRev 9 Komarek, J. (2007). “In the Court(s) We Trust? On the Need for Hierarchy and Differentiation in The Preliminary Ruling Procedure” Article, 32 ELRev 467 Maher, I. (1994). “National courts as European Community courts”. Online Journal, 14 LS 226 Mancini, F. and Keeling, D., (1991).”From CILFIT to ERT”. Library Journal, 11 YBEL 1 Rasmussen, H. (2000).”Remedying the Crumbling EC Judicial System”. Online Library Journal, 37 CMLRev 1071. Rasmussen, H., (1984).”The European Courts Acte Clair Strategy in CILFIT”. Online Journal, 9 ELRev 242 Tridimas, T. (2003).”Knocking on Heavens Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure”. Library Journal, 40 CMLRev 9 Read More