Article 234 EC Treaty and the European Court of Justice - Research Paper Example

Article 234 EC Treaty and the European Court of Justice The integrity of the European Union is maintained by the European Court of Justice through Article 234 of the EC Treaty1 and through direct effect. Although the power to regulate the Member States’ compliance with the EC law is centralised, there is a gradual evolvement of policing by individuals and companies of the state behaviour, proper implementation of EC law and any non – compliance with the EC law by the Member States. This decentralised means of control is primarily based on the frameworks established by the institutions of the European Union2. The doctrines of direct effect and the supremacy of the EC law over the national law are the fundamental foundations of this structure. Under the doctrine of direct effect, individuals are bestowed with legal rights, which enable them to invoke the national courts directly to challenge the Member State’s failure to adopt the provisions of the EC law. Under the doctrine of supremacy, the EC law precedes national law in the event of any conflict between the National law and the EC law. Accordingly, by virtue of these two important doctrines, the European Court of Justice transformed the preliminary ruling system from a mechanism in which individuals can challenge the EC law in the national courts into a framework in which individuals can challenge the national law in national courts in order to make the EC law prevail upon the national law3. Initially, there was a significant amount of protest by the national courts. Subsequently, the national courts began to accept such challenges under direct effect and commenced to protect the Community rights of individuals. Moreover, whenever an interpretation was required in a particular case, the national courts referred these cases to the European Court of Justice for clarification4. There were a few such preliminary references in the 1960s. They increased to nearly fifty by mid 1970s, over one hundred in the early 1980s, and around two hundred by 1990s. This clearly established that the national courts had become the key elements of the European legal system. In this manner they have become a part of the judicial relationship of the European Court of Justice. The European Court of Justice interprets the provisions of EC law and the national courts apply these provisions into national legislation. Hence there is a functional division and the national courts have to perform duality and enforce two legal bodies such as national legislation and European legislation5. The decentralised compliance system has proven to be effective in enforcement and management functions. Under this mechanism individuals can file suits in national courts against non – compliance with EU law by the national government. Individuals can invoke national courts in order to obtain compensations for damages resulting from non – compliance with EU law by national governments. However, the costs of such breaches are not given much importance in national courts, as they pursue the interests of the nation as a whole. Hence, the European Court of Justice is forced to intervene quite regularly. Moreover, a reference to the European Court of Justice by national courts ensures the proper functioning of the EC law, clarity in interpretation of the EC law and served to establish a precedent6. The European Court of Justice is the ultimate interpreter of the EC law; however, it only can review the Community legislation. It is essential to take cognizance of the fact that, although national courts can interpret the EC law they are bound by the interpretations given by the European Court of Justice and under no circumstances can the national courts declare the EC law as invalid7. Most of the rulings of the European Court of Justice that shaped the foundations of EC law have been rendered in preliminary reference procedures, under Article 234 of the EC Treaty. The European Court of Justice had elaborately defined the doctrines of supremacy8 and direct effect9 of the EC law. The European Court of Justice had also elicited the remedies available in respect of damages for breach of EC law by the Member States10. These doctrines are delivered in the references by national courts to the European Court of Justice. Further, the expansion of the Union and the endeavour of bringing new areas of law into the Community fold, have significantly increased the jurisdiction of the European Court of Justice. The preliminary reference system, which is laid down in the Article 234 of the EC Treaty, has been widely accepted by the national courts. Article 234 EC Treaty states that the lower courts may refer the questions to the European Court of Justice, whereas and the courts of final instance should refer them to the European Court of Justice without fail. In the case of CILFIT, the European Court of Justice held that national courts may apply the doctrine of acte clair11, therefore, even a court of last instance can refrain from adopting a preliminary reference procedure if the provision of the EC had already been interpreted by the European Court of Justice or if the correct application of EC law was so obvious and without obscurity. There is no statutory provision in respect of the requirements with regard to the form or content of a reference for preliminary ruling and the European Court of Justice had developed such requirements through its case law. In addition, the European Court of Justice had also issued an Informal Note regarding Reference by National Courts for Preliminary Rulings. Moreover, the European Court of Justice is a constitutional court and its interpretation of the Treaties is justified since the EC Treaty is a constitutional charter. This is self evident, due to the fact that the EC law is a unique legal system as has been established by the European Court of Justice in Van Gend en Loos12. Furthermore, this argument has been ratified by all the Member States. Thus the fundamental task of such a constitutional court was to eliminate the lacunae and to establish a legal order that was created by the constitution13. Many criticise the judgements of the European Court of Justice for its over – activism but the inexorable stance of the European Court of Justice is to fortify the spirit and the rule of law in the Community legal order. The European Court of Justice always attempts to protect the rights of the individual and plays a political role in the process of European integration. However, the EC law is not autonomous legal order, because of the fact that it is integrated with the legal systems of the Member States. Accordingly, the European Court of Justice has to deal with two types of legal systems, first, the Community legislature and second, the national legislature of the Member States14. A court or tribunal of last instance which fails to make a preliminary reference to the European Court of Justice is in violation of Article 234 (3) EC. Making a preliminary reference to the European Court of Justice under Article 234 can facilitate national courts to be self sufficient against national institutions. This preliminary reference procedure strengthens the EU constitutionalism and reflects the power of the Community at three levels, namely, first, at the supra – national level, which involves national governments and institutions of the Community; second, at the Member State national level, which involves the executive and other legislative branches of government and third, within the judiciaries that extend from national courts of last instance to lower national courts15. The European Court of Justice’s case law helps to improve the relationship between the Member States and the Community. In this regard the relevant case law of the European Court of Justice has set the precedent for the formal legitimacy of the European Court of Justice. The decision in Van Gend Loos16had established the doctrine of direct effect which requires the provisions of the Treaties to be rendered directly effective in the spirit of Community law and excludes national constitutional legislation. Furthermore, the decision in Costa v ENEL17 served to establish the supremacy of EC law. Moreover, in the Francovich18 case the European Court of Justice had ruled that there was national liability. In the case of Foglia v Novello19, the European Court of Justice had ruled that the Court should be the ultimate entity to decide upon the ambit of its jurisdiction. The European Court of Justice held in CILFIT that whenever national courts become the last resort and when there is no remedy found to be granted to the injured party in cases of damages, then the national courts have to refer such cases to the European Court of Justice. Consequently, in the case of Foto-Frost20the European Court of Justice held that national courts had no authority to declare an act of the Community as invalid. The European Court of Justice plays different roles under different Articles of the EC Treaty. For instance, under Article 230, it acts as an Administrative Court that exercises judicial review over national and Community legislations. Under Article 225 EC, it acts as an appellate court for decisions taken in the Court of First Instance of the Member States. Moreover, under Article 234 EC, the European Court of Justice is the primary actor that enjoys jurisdiction over the European Union and the European Court of Justice confronts the most of important issues. As such it constitutes the only direct link between national legal orders and the European legal system. It is mandatory for national courts, whilst trying a case to apply Community law in totality. Further, these national courts are required to safeguard the rights of individuals as has been provided for by the Community law. Moreover, national courts have to allow Community law to prevail upon the national law and in this endeavour these courts have to overrule any national legislation that is in conflict with the Community law, furthermore, it is immaterial as to whether such conflicting national legislation was formulated prior to or subsequent to the Community law. As such any judicial, administrative or legislative practice and any measure or provision of national law that is in conflict with Community law or that serves to curtail the efficacy of Community law is deemed to be irreconcilable with Community law and is therefore proscribed21. References Case 314/85, Foto-Frost v Hauptzikkant Lubeck-Ost (1987) ECR 4199. Case 6/64 Costa v ENEL (1964) ECR 585 Case 35/76 Simmenthal v Italian Minister for Finance [1976] ECR 1871. Case 106/77 Administrazione delle Finanze dello Stato v Simmenthal SpA (1978) ECR 629. Case 26/62 Van Gend en Loos v. Nederlandse Tariefcommissie [1963] ECR 3. Case C-224/01 Köbler v. Austria [2003] ECR I-10239. Case 283/81 CILFIT v. Ministry of Health [1982] ECR 3415. Cases C-6/90 and C-9/90 Francovich v Italian Republic [1991] ECR I-5357 Case 104/79 Foglia v Novello [1980] ECR 745 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur v. Germany and R. v. Secretary of State for Transport, ex parte Factortame [1996] ECR I-1029 Joined Cases C-6/90 and C-9/90 Francovich v. Italy [1991] ECR I-5337. McCubbins, Mathew D., and Thomas Schwartz. 1984. Congressional Oversight Overlooked: Police Patrols versus Fire Alarms. American Journal of Political Science 28 (1):165-79. Piet Eeckhout, The European Court of Justice and the Legislature. Retrieved 22 August 2007 from http://fds.oup.com/www.oup.co.uk/pdf/0-19-829879-X.pdf Takis Tridimas. ‘Knocking On Heaven’s Door: Fragmentation, Efficiency, and Defiance in the Preliminary Reference Procedure,’ (2003) CMLRev, 40: 9-50. Weiler, Joseph H. H. 1991. The Transformation of Europe. 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