Article 234 of the EC Treaty Jane - Case Study Example

Introduction By virtue of Article 234 of the EC Treaty Jane is not at liberty to take her case to the European Court of Justice by way of reference. Although Article 234 promotes the concept of comity and community harmony in respect of domestic and community law, there are two key developments that impact upon the operation and application of Article 234. These developments are the concept of “acte clair” and the ECJ’s ruling in Folgia v Novello. The following discussion examines these developments in the context of Jane’s particular problem and expalins why it is not possible for Jane’s case to be referred to the ECJ under Article 234 of the EC Treaty. Article 234 Article 234 of the EC Treaty provides a mechanism by which citiziens and bodies within the European Community may obtain clarification of Community law. In a typical case a question is referred to the European Court of Justice and the general puropose of Article 234 is to ensure that all laws within the European Community equally reflect Community law. In general Article 234 provides that the European Court of Justice will have the authority to “give preliminary rulings”1 with respect to: “(a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; (c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide.” 2 Article 234 goes on to provide that when “such a question is raised before any court of tribunal of a Member State,”3that court or tribunal may if it deems it necessary for the purpose of ruling in the matter before it, “request” a ruling from the ECJ.4 Moreover: “Where 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, that court or tribunal shall bring the matter before the Court of Justice.''5 The result of Article 234 is the development and application of Community law. Principlay Article 234, the ECJ by deciding cases by way of references it rules on points of law and does not sit as an appellate court. In Foglia v Novella [1980) ECR 745 the ECJ ruled that it would only determine references arising out of genuine disputes and refused to accept a reference where a clause was inserted into a contract solely for the purpose of creating a legal challenge.6 In the case of Melicke v ADV/ORGA AG [1992] ECR I-4871 the ECJ refused a refence because it lacked specificity in the sense that the court was required to rule on a hypotheical bases. The ECJ ruled that it could not decide on the disputer because it did not have: “before it those elements of fact and national law necessary for it to provide a useful answer to the questions.”7 Janes Claim under Article 234 The first issue for Jane is whether or not the Social Service Adjudicator presiding over Jane’s complaint is a proper body under the provisions contained in Article 234. Article 234 provides that either a tribunal or court can make a reference to the ECJ with the result that there is no need to distinguish between the two.8 Moreover, the ECJ has already provided some guidance as to what body will constitute a tribunal or court within the meaning of Article 234 of the EC Treaty. In Broekmeulen v Huisarts Registratie Commissie 1981 ECR 2311 the referring body was an appeals commission and as such was a court under article 234. The appeals commission was authorized and approved by public authority and it was comprised of members appointed by ministers and the process provided for a complete hearing of the matter. More significantly, the decision by the appeals commission was binding.9 The decision in Broekmeulen v Huisarts Registratie Commissie 1981 ECR 2311 is particularly problematic for Jane. Certainly the adjudicator appears to have the indorsement of public authority since he or she is appointed by public authorities, namely the local council. However, the very nature of the process lacks completeness since only the complainant makes submissions and the resulting ruling is not legally binding. Based on the decision in Broekmeulen v Huisarts Registratie Commissie 1981 ECR 2311 the adjudicator is not a proper court or tribunal within the meaning of Article 234 and as such is not authorized to refer a ruling to the ECJ. Moreover, the ECJ’s ruling in Nordsee v Reederei Mond [1982] ECR 1095 presents another compliation for Jane’s erquest for an Article 234 reference. In Nordsee v Reederei Mond the ECJ had for determination whether or not an arbiter presiding over a commericial matter was a court for the purpose of referrals under Article 234. The court rules that since the parties to arbitration had voluntarily submitted to the arbitration process the arbiter could not be viewed as a court or tribunal. More telling was the ECJ’s ruling that even so, the parties would still seek redress in the domestic courts should the arbitration process failed.10 It would appear from the ruling in both Nordsee v Reederei Mond and Broekmeulen v Huisarts Registratie Commissie that the adjudicator presiding over Jane’s matter is not at liberty to make a reference to the ECJ under article 234 of the EC Treaty. The adjudicating process is not final and not legally binding which presupposes that either party to an adjucating process can take the matter to the domestic courts for relief notwithstanging the adjucator’s ruling. A second issue for Jane is whether or not the reference is indeed necessary. Article 234, paragraph 3 mandates that the court or tribunal is only permitted to make a reference if it is necessary for them to make a decision. The case of Cilfit srl v Ministro della Sanita [1982] ECR 3415 provides some useful guidelines for the determination of necessity it does so by defining what kinds of ruling will not necessarily require an Article 234 reference. For instance, it will not be necessary to invoke the jurisdiction of the ECJ for the construction of Community law is not relevant for the uiltimate determination of the case.11 It would appear that Jane’s case is straightforward. A decision requiring implemenation by all Member States was not implemented by the UK and it does not involve an interpretation of Community law. The decision requries implementatin by each member state and as such is no differnet from a directive. Directives are required to be enacted by the Member States, are binding on all members and are “directly applicable.”12 Article 249 (formerly Article 189) of the EC Treaty provides that directives are binding on “each state to which it is addressed.”13 Directives place a legal obligation on the Member State and while they are not applicable to suits between individuals, an individual may pursue the State or any of its agents if a Member State fails to comply with the directive. Under European Community law there are three systems of law. The systems are referred to as primary legislation which consists of the various Treaties under the European Union and secondary legislation which are essentially Directives, Decisions and Regulations.14 For the purpose of this discussion there is no real distinction between directives, regulations and decisions since each requires implementation when issued by the European Union. Appling the rationale contained in Francovich and Bonifaci v Italy, Jane is at liberty to pursue an action in damages against the United Kingdom for any loss sustained as a result of the government’s failure to implement the public funding child care decision.15 In Van Gend en Loos v Nederlandse der Belastingen the ECJ ruled that some provisions have direct application in Member States the European Courts held that these provisions create ‘individual rights which national courts must protect’.16 While directives are not enforceable against individuals if they are not implemented by the law of the applicable State they are actionable against Member States by virtue of the doctrine of ‘direct effect’. The ‘direct effect’ doctrine was explained by James Marson as having both vertical and horizontal effects. Direct Effect of Directives: “are only possible (explicitly, in the vertical direction (against the Member State or its emanations).”17 The Vertical Direct Effect applies when a Directive is “unimplemented or incorrectly transposed”.18 Since the public funding decision requires implementation and has not been implemented, Jane’s proper recourse is by virtue of the doctrine of direct effect. Rather than rely on a reference to the ECJ she should pursue a claim for damages directly against the government on the grounds that it failed to implement a decision and contravened Article 249 of the EC Treaty. This alternative course of action is implied by the application of doctrine of Acte Clair as explained in the Clifit case. In Clifit’s case the ECJ ruled that it was not necessary to make a reference in respect of an issue if the issue contains facts and circumstances that are essentially similar to a matter already ruled on by the ECJ under Article 234 or where the proper law is so unambiguous that the proper resolution is abundantly clear. As perviously stated, the issue is clearly one of the government’s failure to implement a decision required to be implemented. In the disucssion above it is also equally clear that the ECJ has left no room for doubt about the position it takes on such matters. The complainant has a right to seek redress directly against the Member State failing to implement a measure which requries implementation. In HP Bulmer Ltd v J Bollinger SA [1974] Ch 401the Court of Appeal determined that a reference would only be justified if the result was finality and it similarly constituted a judgment of last instance. However, if the ECJ had previously ruled on an identical issue the reference would not be necessary.19 The courts in the UK take the position that only in cases where a material doubt exist should a matter be referred to the ECJ by way of reference.20 However, a reference must be made if presiding court is one: “…against whose decision there is no judicial remedy under national law.”21 There is no doubt that Judy has ample remedies under the UK’s national laws. Section 2 of the European Community Act 1972 makes it abundantly clear that Jane may seek redress under the National law and is worded in such a way as to recognize and indorse the provisons of the EC Decision with respect to public funding for child care. Section 2 provides as follows: “…all such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression 'enforceable Community right' and similar expressions shall be read as referring to one to which this subsection applies.”22 It is also importatnt to note that Section 2(1) of The European Community Act 1972 provides that even if there is a conflict between the applicable domestic legislation and the law of the European Community law, European Law will prevail.23 It is thereofore clear that Jane’s position is protected both nationally and by European Community law. Should she decide to take her claim to a national court that court will be obliged to apply the decision under the auspices of Section 2 of the European Community Act 1972 and Article 249 of the EC Treaty. Article 249 leaves no doubt about Member States’ obligations to apply and indorse Community Law and Section 2 of the 1972 Act makes the EC Treaty and all obligations arising under it binding on the UK. Case law undisputedly denies a reference under Article 234 where the appliation of the law is clear and has already been previously decided. There is no doubt that Jane’s remedy is founded upon the doctrine of direct effect. In order to obtain proper and efficient relief, Jane could sue the government for damages in respect of its failure to implement the EC decision requiring the UK to implement measures for the provisio of public funding for childcare. It is obvious that she has had to pay for childcare for three children when EC law mandates that Member States make provision for the same. She has a clear and unambiguous claim and can one that can be determined decisively by the national courts. Similar issues have already been determined and there is no doubt that failure to implement an EC decision, directive or regualtion and the consequences for the offending government has already been decided by the ECJ and the UK courts. Bibliography Broekmeulen v Huisarts Registratie Commissie 1981 ECR 2311 Cilfit srl v Ministro della Sanita [1982] ECR 3415 Costa v ENEL [1964] ECR 585 EC Treaty European Community Act 1972 Foglia v Novella [1980) ECR 745 Foster, Nigel. Blackstone’s EC Legislation. (2006) Oxford University Press Francovich and Bonifaci v Italy, [1991] ECR I-5357 HP Bulmer Ltd v J Bollinger SA [1974] Ch 401 Irish Creamery Milk Suppliers Association v Ireland [1981] ECR 735 Marson, James. “Access to justice: a deconstructionist approach to horizontal direct effect.” [2004] 4 Web JCLI http://webjcli.ncl.ac.uk/2004/issue4/marson4.html Viewed December 10, 2007 Melicke v ADV/ORGA AG [1992] ECR I-4871 Nordsee v Reederei Mond [1982] ECR 1095 R v Internation Stock Exchange, ex parte Else Ltd [1993] 2 CMLR 677 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) ECR 1 (Case 26/62) Oct.32 Read More