Definition of Preliminary Reference Procedure - Assignment Example

of the Topic: To what extent has the preliminary reference procedure allowed the European Court of Justice to develop into a Supreme Court for the EC/EU? Introduction This paper examines how the preliminary reference procedure allowed the European Court of Justice (ECJ) to become more powerful than it was originally designed under the treaty. It will also analyse how the ECJ started under the treaty and the magnitude of its present functions with an explanation of the causes underlying the transformation of the ECJ into a Supreme Court of the EC/EU. Definition of preliminary reference procedure European Foundation for the Improvement of Living and Working Conditions., 2005, posits: “The preliminary reference procedure is used when a national court or tribunal refers a question of EC law to the European Court of Justice (ECJ) for a preliminary ruling so as to enable the national court, on receiving that ruling, to decide the case before it. Questions of EC law will arise in cases before the courts of different Member States. The function of the preliminary reference procedure is to ensure uniform interpretation and validity of EC law across all the Member States.” It also said that the procedure is laid down in Article 234 EC: ‘Where such a question is raised before any court or tribunal of a Member State, that court may, if it considers that a decision on the question is necessary to enable it to give judgment, require the Court of Justice to give a ruling thereon.’ (European Foundation for the Improvement of Living and Working Conditions. 2005) On the other hand, preliminary ruling is defined as: ‘a special type of action before the ECJ by which national courts ask the ECJ to interpret EU law or to decide on validity and direct effect of EU acts; ECJ ruling is binding and not subject to appeal.’ (GLOSSARY OF EUROPEAN UNION COMMONLY USED TERMS, no date) The reference procedure, therefore, is a creation of the treaty makers who are the member states themselves. The fact that ECJ ruling would be binding and not subject to appeal as a result of the reference is itself a conferment of a strong power to the ECJ. To say therefore that the reference procedure has made the ECJ more than how it should function is to imply attribution of more powers than it was originally conferred under the treaty. (European Foundation for the Improvement of Living and Working Conditions, 2005) How the ECJ started its function under the treaty and how it transformed itself? Alter said that ECJ started as fairly weak international tribunal from many of the problems faced by international courts. The court then, according to her, lacked cases to adjudicate and since no enforcement was in place, its decisions were not taken seriously. Change did happen and she attributed the change to strong foundations of the EU legal system with the help of national judiciaries. The author further said that the ECJ created a base of political leverage for itself, by building legal doctrine. It was her belief that the preliminary ruling mechanism in the EU serves as a direct link coordinating interpretation of national courts with the ECJ. She also posits that the preliminary ruling system also serves a political function, pressuring national high courts to bring their jurisprudence into agreement with the ECJ. (Alter, p.147) (Paraphrasing made) What are the evidence at hand that the ECJ is being transformed into a Supreme Court EC/EU? To say that the ECJ has become a Supreme Court of EC/EU, would refer to the application of the principle of the supremacy of the EC over national laws or the assertion of too much “independence” on the ECJ so as to be charged of judicial activism. There were really indeed decisions upholding the principle of supremacy of the EC law principle over the national laws. The decisions borders on charges judicial activism because the ECJ would be in effect making interpretations that would really uphold the primacy of EC laws over the national laws. The preliminary reference procedure is clear in conferring the power to the ECJ in resolving conflicts between the EC laws and national laws. Being branded as Supreme Court of the EC/EU implies also a virtual creation of a Federal Europe when in fact it is not and an implied ‘subservience’ of the member states to the federal government. This could therefore imply a claim of loss of sovereignty because of the application of the principle of supremacy of the EC laws over national laws of member states. This observation seems to be confirmed by the statement of Lord Denning as follows: “Our sovereignty has been taken away by the European Court of Justice. It has made many decisions impinging on our statute law and says that we are to obey its decisions instead of our own statute law. . . . Our courts must no longer enforce our national laws. They must enforce Community law. . . . No longer is European law an incoming tide following up the estuaries of England. It is now like a tidal wave bringing down our sea walls and following inland over our fields and houses—to the dismay of all.” (Denning, 1990) The above statement portrays an admission by UK judiciary that as early as 1990 has really become powerful in interpreting the EC law. It has made Europe in a sense into a big federal state where the individual sovereignty of each member states is being made subservient to the decisions of the ECJ. The doctrine of preliminary reference in the treaty of Rome for purposes of asking preliminary ruling was transformed into enforcement power of the ECJ putting national courts of members’ states trying to follow the rule of precedents in the ECJ decisions. As admitted by Alter, the politicians of one member state who may not be please with the decision of the ECJ could not just master enough support from the politicians from the other member states to make extra legal solutions to problems brought to the ECJ. The original plan of integration seems also to be unstoppable making the ECJ the precursor of the EU Supreme Court because of the power that it yields. This may be reasonable projection because the nature of powers may not be tilted all in favour of one branch that is the judiciary. The political arm would have to mobilize its forces to be able to influence the balance of power. Transformation according to Alter Alter says that member states intended to create a court that could not significantly compromise national sovereignty or national interest, but the ECJ changed the EU legal system, fundamentally undermining member state control over the Court. A significant part of the ‘‘transformation’’ of the EU legal system has been explained by legal scholars who have shown how the Court turned the ‘‘preliminary ruling system’’ of the EU from a mechanism to allow individuals to challenge EC law in national courts into a mechanism to allow individuals to challenge national law in national courts. (Rasmussen, 1986) The intriguing question out of the transformation however is: What could have caused the situation? Three causes of transformation Alter gives 3 causes of the situation and let us try to analyze whether there is any merit to what she says. In the first component, the author says: First, I argue that judges and politicians have fundamentally different time horizons, which translates into different preferences for judges and politicians regarding the outcome of individual cases. By playing off the shorter time horizons of politicians, the ECJ developed legal doctrine and thus constructed the institutional building blocks of its own power and authority without provoking a political response. (Alter, p.122) Comment: The premise of the author is that ECJ did its worked under a longer time horizons than the politicians. The argument seems to have basis on premise that politicians’ clout in office is affected by their terms of office and they are more interested in the political effects of court decisions than the doctrinal effects which are observable under the judiciary branch. However, it is also a fact that ECJ judges have a definite term to say in office. Should we not say the same thing for them? Alter’s next cause says: Second, I argue that the transformation of the European legal system by the ECJ limited the possible responses of national governments to its decisions within the domestic political realm. In the early years of the EU legal system, national politicians turned to extralegal means to circumvent unwanted decisions… The threat that national governments might turn to these extralegal means, disobeying an ECJ decision, helped contain ECJ activism….Because of national judicial support for ECJ jurisprudence, national governments were forced to frame their response in terms that could persuade a legal audience, and thus they became constrained by the legal rules of the game. (Alter, p.122) Comment: The argument seems logical because of the nature of power. In the political realm, what is popular, what is expedient, what will deliver the votes for the next elections are more serious consideration but the exercise of judicial power is governed by the principle of stare decisis of which old decisions have a big influence on how the future ones will be resolved and judged are bound of that principle. If it is really true that politicians had resort to extra legal means of the past, then ECJ must have done it’s a function under the rule of law. Alter’s next cause says: Third, national court enforcement of ECJ jurisprudence also changed the types of policy responses available to national governments at the EU level. Member states traditionally relied on their veto power to ensure that EU policy did not go against strongly held interests. The ECJ, however, interpreted existing EC laws in ways that member states had not intended and in ways that compromised strongly held interests and beliefs. As member states began to object to ECJ jurisprudence, they found it difficult to change EU legislation to reverse court decisions or to attack the jurisdiction and authority of the ECJ. Because there was no consensus among states to attack the authority of the ECJ, member states lacked a credible threat that could cow the Court into quiescence. Instead, the institutional rules combined with the lack of political consensus gave the ECJ significant room to maneuver. (Alter, p.123) Comment: The author appears again logical and convincing more this time. There is basis to agree that the institutional rules combined with lack of political consensus gave the ECJ significant room to avoid being controlled by the member states. While it is true that a spring cannot be higher than its course it is also true that a part or parts could not be bigger than the its or their whole. This means that although the ECJ was created by the various member states through consensus, it also takes the same consensus to control the power of its creation. No matter how one member state feels aggrieved about a decision of the ECJ if not share by the other member states, the prospect of going against the ECJ decision is an uphill battle. This is very logical in the sense that for every losing member state involving a controversy of two separate states in the ECJ, there is also a winning member. Talking or the reality to have a common agenda to exert political influence on court decision would seem just very impractical or difficult unless the decision of the ECJ is patently immoral or illegal which would move a freedom and justice loving Europeans to take action. Conclusion At the start, the ECJ was created to fill three limited roles for the member states which included (1) ensuring that the Commission and the Council of Ministers did not exceed their authority, (2) filling in vague aspects of EC laws through dispute resolution, and (3 ) deciding on charges of non-compliance raised by the Commission or by member states. It is cleat that none of the above roles required national courts to funnel individual challenges to national policy to the ECJ or to enforce EC law against their governments. Indeed, as Alter said, “negotiators envisioned a limited role for national courts in the EU legal system.” (Alter, p.124) However, Alter says “in 1986 the Treaty of Rome was amended to allow for the creation of a Court of First Instance to allow the ECJ to examine in more detail competition policy decisions of the Commission. In 1989 the role of the ECJ in checking the Commission and the Council was expanded by allowing Parliament to also challenge Commission and Council acts.” (Alter, p. 126) With the amendments of the treaty and the use preliminary reference procedure ECJ was able to transform itself into what cannot be easily stopped. The fact that no strong political action could stop its ruling particularly on preliminary ruling which are unappeasable and the various applications of the principle of supremacy of the EC laws in its decisions, the ECJ has transformed itself into a virtual Supreme Court of the EC/EU. Bibliography: 1. Alter, Karen, 1998,Who Are the ‘‘Masters of the Treaty’’?: European Governments and the European Court of Justice , The IO Foundation and the Massachusetts Institute of Technology 2. Denning, Lord. 1990. Introduction to ‘‘The European Court of Justice: Judges or Policy Makers?’’ London: The Bruge Group. 3. European Foundation for the Improvement of Living and Working Conditions., 2005 , Preliminary reference procedure, [www document] URL http://www.eurofound.eu.int/areas/industrialrelations/dictionary/definitions/PRELIMINARYREFERENCEPROCEDURE.htm [accessed January 20,2006] 4. GLOSSARY OF EUROPEAN UNION COMMONLY USED TERMS, no date, [www document] URL http://faculty.law.ubc.ca/biukovic/EUlaw/EUglos1.htm) [accessed January 20,2006] 5. Rasmussen, Hjalte. 1986. On Law and Policy in the European Court of Justice. Dordrecht: Martinus Nijhoff Publishers. Read More