Influence of CILFIT and Da Costa Judgments on the Relationship between Justice Court and National Court - Essay Example

? What influence did the CILFIT (231/81) and Da Costa (28-30/62) judgments have on the relationship between the Court of Justice and the national courts? Name: Course No: Course Name: Instructor’s Name: Date: What influence did the CILFIT (231/81) and Da Costa (28-30/62) judgments have on the relationship between the Court of Justice and the national courts? Introduction The Da Costa and CILFIT defined a new relationship in terms of precedent between the Court of Justice and the National courts. This sort of precedent along with its binding effect of preliminary rulings has brought revolutionary changes between the Court of Justice and national courts. Its roots are firm in terms of cooperation with the court of justice, which has an edge over national courts1. The critics of CILIFIT doctrine do not criticise the Da Costa decision since ruling of European Union Court of Justice (ECJ) is similar to the system of precedent. In Da Costa, one ruling is enough to create a precedent whereas in the CLIFIT, the court has to refer to previous decisions. The National courts of each European country are to ensure that European Union (EU) law is properly applicable. By applying the European Union laws, different countries of the EU may interpret the laws in different ways. As a preventive measure, preliminary ruling procedure has been introduced. In case of any misunderstanding / ambiguity about the EU Laws, the national courts may refer the matter to EU Court of Justice for necessary clarifications / interpretations. This will come up in the shape of preliminary ruling. The apex court of EU is to ensure that EU laws are interpreted and applied in its true spirit in all member states. It means that the law treats everyone equally. Further, the Court of Justice will not allow National Courts to pass different rulings in the similar case. The Court in question makes sure that member states and their institutions are performing in accordance with EU law. It has the discretion to settle the legal disputes between member states, institutions, business entities and the individuals. In subsequent paragraphs, we will discuss threadbare the influences of CILFIT and Da Costa with regard to the relationship between the Court of Justice and the National Courts. EU Law There is no doubt that the preliminary reference system with regard to the principles of primacy and its direct bearing, re-defined constitutionalism in the European law and re-allocated the powers at three different stages. The different stages are known as superior level, national level and the judiciary level. The initial point of self-evidence requires a short explanation (reference may please made to Costa v. ENEL). It is the duty of the national courts to protect the rights, which enables ECJ to question governmental action in the areas, which are not previously taken into account by national law. The powers conferred to the national judiciary further been stretched by the indirect affect of Community law2. So many things can be instrumentals in terms of legal concepts, reviews, and remedies in relation to Community rights that strengthen the judicial accountability of incumbents at public institutions. With regard to the power conferred, the third tier is within the ambit of national judiciary. The first reference procedure paves the way for ECJ to provide an alternate source of legal authority. The subordinate judiciary if pursue the rulings of higher courts, will ease out the burden of piled up cases. Take into account Article 234 (Treaty Rome 1957), the procedural benefactor of constitutional change. The judicial negotiation takes its effect by way of preliminary reference procedure, enabled ECJ to lay down the foundation of community legal system and to set the ball rolling towards constitutionalism of treaties between the sovereign States3. In the year 1961, the principles established by the European Commission of Human Rights provide an opportunity for quantitative and qualitative change. In its case law, the ECJ coined the terms of judicial negotiation in such a way that reflects constitutional development of the Communities. In an effort to encourage national courts to rise above their level and “to think federal”, it adopted a broader term “court or tribunal” to entertain references. On the other hand, it has the pre-rogative to interpret community law. It also makes a reference of any interference from the litigants or the hurdles imposed by national law4. The perusal indicates that CILFIT played its vital role as far as the relationship between the ECJ and the national courts by way of doctrine Acte Clair. When a national court considers that the answer of a question that pertains to Community law is clear and it does not require a reference to the ECJ, this is termed as Acte Clair. Minute reading of the doctrine reveals that it has promoted the process of federal judicial system. To liberalise the national courts from the obligations, which the case law already provides a solution in a clear term, the ECJ can establish value of its rulings. Moreover, it recognises that national courts have a vital role to play towards upholding and shaping up community law as the case may be. Now the courts in question intervene not only as facilitators but also as effective actors. By entrusting national courts to adjudicate their decision in accordance with the community law in force, thus making way for internalization of community law5. Keeping in mind the number of references since 1990, the court is now taking a rigid attitude in entertaining and reviewing the admissibility of references besides extending its jurisdiction to respond to its requests from national courts to interpret the available provisions of Community law6.   It is an admitted fact that preliminary reference procedure amounts to major facilitator of constitutional reforms, thus providing the basis of jurisdiction to re-distribute the authority amongst the various organs of legal system. Legal experts are of the view that the mandate enjoyed by ECJ under Article 234 can be considered as embracing. These are no more required after the changes in the Treaty of Amsterdam and the Treaty of Nice. The major challenges that are faced by the competent court of law are, how to keep intact the integrity of community legal order where constitutional, pluralism and diversity exist7. The hard-pressed problems nowadays, increase the Court’s case law. To fill the gap between supply and demand with reference to preliminary references, the ECJ and other stakeholders opted for gradual supply of rulings in order to streamline the procedure. The obvious reasons are to gain political advantages out of this situation8. Now the question arises whether drip-by-drip supply will be a long-term solution to the mentioned problem. The far-reaching impact is due to Treaty of Nice, which provides a way for the CFI to have jurisdiction over preliminary references. This is a welcome move in terms of providing sufficient safeguards to maintain influence of ECJ9. Let us examine the different sort of national jurisdictions, which depicts certain perceptions of preliminary reference procedure and the doctrine of Acte Clair. Katsarou10 shows the application under the doctrine of Acte Clair as an act of defiance. Contrary to that Danish constitutional court that views it as a cushion for reconciliation; therefore, it cannot be treated as unconditional surrender of sovereignty. In a number of cases, national courts have failed to make references11. Hence, one should be cautious of establishing a general pattern of disobedience. With regard to National Courts that poses two sorts of challenges to the ECJ It is not incumbent upon the National Courts to take Community law as remedy but to make internalized notion. It would not be out of place to mention that most national courts do not take into account the views of ECJ as supreme over the national constitution. In some exceptional cases, supremacy is conditional and reversible12. CLIFIT Case In addition to the Council and the European Parliament, one cannot ignore the importance of European Court of Justice whose status as a legislative body within the European Union can not be overlooked. Through preliminary ruling procedure, the ECJ introduced key principles of EU law to play its significant role in the integration process13. From 1950’s, the procedure in question has been regulated through Article 234 which ensure presence of European Community. The Amsterdam Treaty established specific format of procedure in respect of visa, political asylum and immigration issues14. After two decades of Cilfit , the ECJ referred Da Costa as correct application of Community law through national courts. This kind of process referred to as Acte Clair doctrine. The previously mentioned doctrine is there to encourage national courts to rely on earlier decisions15. If we compare it with the courts of member states, the United Kingdom courts took an edge. Since English legal system is based on precedents, therefore, English courts defend autonomy of their own case law to maintain “horizontal and bilateral” relationship with the ECJ16. The Court of Justice without any doubt introduced a legal system of precedent, which was most probably not intentional. The objectives of ECJ are to avoid response of the similar questions of the courts or the tribunals of the member states for a preliminary ruling17. Courts in the United Kingdom show some concern over sending the matter to the ECJ for interpretation. It indicates strong trend to make reference on a particular issue under Community Law. As far as the relationship is concerned between the UK and the ECJ, it is somewhat co-operative as compared to other member states18. Relationship between the National Courts and the ECJ The relationship between national courts and the ECJ was constituted under Art 234, allowing preliminary reference to ECJ by national courts for an interpretation of EC law point. It is incumbent upon the national courts before applying for an interim measure to ensure whether the matter is urgent and based on factual and legal grounds and to justify the purpose of Article 23419. The national court is to ensure unity of interpretation, applicability of community law uniformly and actions against member states and community institutions under Act 230 and last but not least are the cooperation of national courts and its willingness to make references20. As far as the working of national courts and the ECJ is concerned, it is horizontal but equal. It is the discretion of the national courts to refer the matter to ECJ for interpretation or not. It is bilateral in the sense that the interpretation of ECJ will be delivered to a particular court of member states wherefrom it was received. After examining the layers of the courts in the legal systems of member states and the ECJ, it is felt that the influence of the ECJ is increasing since it decides the case on merit and the national courts to follow the precedents as it sets21. The presence of doctrine of direct effect makes it more vertical and multilateral. The body of law provided by the EC treaties can have the impact on national legislation and the rulings of the ECJ either a de jure or de facto impact on all other national courts22. The ECJ is of the view that it was not always mandatory for a court of last appeal to refer the cases of Da Costa en Schaake NV v Nederlandse Belastingadiministratie23. Moreover, guidance on referral was provided in CILFIT. Under the mentioned scenario, national court will not refer the matter to ECJ provided that the interpretation of EC law is transparent and reasonable and similar to the concept of acte Claire24. According to French administrative law, the ECJ was no doubt influenced, case with similar nature has already been decided by the ECJ and the interpretation of EC law would have no relevance to the outcome of the case25.  The CILFIT is of the considered opinion that the case of similar facts should not be referred to ECJ, which it previously ruled26. It does not necessarily require that facts should be identical. The ECJ expects its decisions to have potential value in terms of binding on national courts. If it is taken for granted, then it is a clear departure from the existing relationship between the ECJ and the national courts. In a broader view, it is “bilateral and horizontal” but with the passage of time, it is becoming more “multilateral and vertical”. The other view is that if the decisions of the ECJ are binding precedents, then, the ECJ would acquire the status of an appellate court27. European Court of Justice There is a dire need to guarantee uniform application of Community law with regard to interpretation of EU law. To interpret the law, Article 234 and the European Court of Justice provide a mechanism. The preliminary reference procedure is utmost important in laying down the basic principles of Community legal system28. The article under discussion defines national courts and tribunals to meet the requirement of Article 234, which draws a line between the bodies enjoying the discretion under Article 234 and those, which are obliged to explain the purpose and impact of the preliminary ruling procedure29. Under Article 234, the Court has the authority to cite preliminary rulings, at the behest of national courts in terms of interpretation of the Treaty and its impact on the institutions of the Community and the Central Bank of European Union30. It is very much clear that the national courts and the tribunals always play an important role in the application and administration of Community law as primary forces. However, the Treaty does not elaborate the term national court or tribunal31. Imposition of Penalty under Article 260 Non-compliance of the court judgment by member states would attract penalties under Article 260. Therefore, State obliged to take necessary measures to comply with the Court judgment. Uniformity and authority of EU law Uniformity is considered a magic wand as far as the formula is concerned which, prevents number of proposals on decentralization of the preliminary ruling procedure32. We quote here the statement of Court of Justice for minute reading: “The example of U.S. Supreme Court shows that striving for uniformity through case law does not mean that the Supreme Court decides every case brought forth”33. The other view of Justice Sandra O’Conner is: “The resulting divergence provides a valuable moment in the law a moment of dialogue among different jurists in which they may share their views on a common issue.”34 The effectiveness of the European Law has been approved by the Court of Justice in a number of cases. Therefore, new member states and their judges have to consider the rulings of the Court of Justice in their judgments. Treaty of European Union Article 267 allows new member’s assistance about European Union Law, which technically called preliminary ruling. The new member states have shown their concern regarding its legality to implement it in their own countries35. The cited issue was challenged in the Court of Justice in the judgement called Skoma-Lux s. r. o v. Celni reditelstvi Olomouc36. In addition to mentioned cases, there are other cases, which brought into lime light of the enlargement of 200437. Under the Article 234 of the Treaty of Rome 1957, which is a judicial device to ensure that the law is established by the Treaties amongst member states of the European Union? Direct Actions against Member States Under Article 258 TFEU, if Member States fail to enforce EU law, the Commission has to deliver a convincing opinion after giving the State, a) opportunity to submit its viewpoint b) bring the matter to the ECJ in case of non compliance of Member States and c) Member State can bring action against other Member State after giving Commission three months to deliver an opinion (Article 259). Direct confrontation in the Court of competent jurisdiction is rare. It is true that the Court does not function in a vacuum. The Courts have to go by the Treaties, which provide numerous clues along with general direction in which the law should be formulated. The judges feel convenient in finding way from the preamble and the initial articles of the Treaties, which clearly define the objectives and the means to those ends38. Examination of Court rulings in certain cases with statute law found obvious weaknesses, while considering the set of general rules and precedents in terms of clarity drafted and adopted by the legislative body. The reason being that number of judgments is cooked up in order to have favourable judgments. As we know that the decision making process is usually shrouded in mystery for those who advocates the idea of transparency. Review of the National Courts and the European Court of Justice indicates that the European Court of Justice decides the case in accordance with European Union Law. It has nothing to do with the National law. National courts as a mandatory requirement have to refer the questions to ECJ for interpretation. It is the responsibility of National Courts to interpret the facts of the case. The treaties empower ECJ to apply EU law within the ambit of European Union. Bibliography A Erciyas, 'Preliminary Ruling Procedure after 2004 and 2007 Enlargements of the European Union and Some Challenges regarding Preliminary Ruling and Late or Non-Translated of EU Law' (erciyas.chesscreativetest.com 2009) accessed 30 November 2012 Anne Marie Slaughter, Alec Stone, and Joseph Weiler, The European Court of Justice and National Courts-Doctrine and Jurisprudence: Legal Change in Its Social Context (Hart, London 1998). C Timmermanns, ‘The EU’s judicial system’ [2004] 41 CMLR 393 Da Costa en Schaake NV v Nederlandse Belastingadministratie [1963] ECR 31 Jonathan Golub, "The politics of judicial discretion: Rethinking the interaction between national courts and the Eurpean court of justice" [1996] 19 WEP 360 Henri de Waele, 'The Role of the European Court of Justice in the Integration Process: A Contemporary and Normative Assessment' [2010] 6 HLR 3 accessed 30 November 2012 Geoffrey Garrett, R. Daniel Kelemen, and Heiner Schulz, "The European Court of Justice, national governments, and legal integration in the European Union" [1998] 52 IO 149 H Rasmussen, ‘The European Court’s Acte Clair Strategy in CILFIT’ [1984] 9 CMLR 242 T Ingman, The English Legal Process (13th edn OUP, Oxford 2010) J Fairhurst, Law of the European Union (6th edn PL, New York 2007) J Komarek, 'In the Court(s) We Trust? On the need for hierarchy and differentiation in the preliminary ruling procedure' 32 [2007] ELR 1 Katsarou v Greek State (1998) Case 3458 K Davies, Understanding European Union Law (2nd edn CP, London 2003) L Cervenkova, 'Application of the ‘Acte Clair’ Doctrine by the National Courts and its Evaluation in the Light of the CILFIT Case (Demonstrated On the UK Case Law)' [2007] Web 1 accessed 30 November 2012 M Bobek, 'Learning to talk: Preliminary rulings, the courts of the Member States and the Court of Justice' [2008] 45 CMLR 1611 Marisa Meli, "The Common Frame of Reference and the Relationship between National Law and European Law" [2011] 7 ERCL 229 N Foster, Blackstone’s Statutes, EC Legislation 2006- 2007 (18th edn OUP, Oxford 2007) N Foster and J Tillotson, Text, Cases and Materials on European Union Law (4th edn CP, London 2003) Skoma-Lux s. r. o. v Celni reditelstvi Olomouc - [2011] All ER (D) 09 (Jan) T Tridimas, 'Knocking on Heaven's Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure' [2003] 40 CMLR 9 Thomas Cottier and Krista Nadakavukaren Schefer, "Relationship between World Trade Organization Law, National and Regional Law [1998] 1 JIEL 83. Read More