Judicial Role in the EC Law Application - Report Example

Judicial Role in the EC Law Application The supremacy of the European Community law vis-à-vis national laws have been upheld by a long line of casesdecided by the European Court of Justice starting with Costa v ENEL [1964] ECR 585. In that case, the ECJ pointed out that when the European member countries created a Community “with unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane, and more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States of the Community,” they have bound themselves to the supremacy of the Community law. The acknowledgment of this supremacy engendered two consequences: the direct effect, which allows individuals in Member States to rely upon the very provisions of the EC law in claiming their rights in their respective courts and tribunals, and; the indirect effect, which requires national courts of Member States to apply domestic laws consistent with EC laws. The latter case, also called the principle of consistent interpretation, is especially important when national courts are called to determine whether or not a particular domestic legislation passed to implement an EU directive is within the perimeters of the EC law (Raitio pp 106-112). The case of Åklagaren v Mickelsson and another [2009] All ER (EC) 842, which originated in Sweden falls squarely under the latter category. In 1972, the UK Parliament passed the European Communities Act, a law that, inter alia, confirmed the supremacy of the EC law. The reason for the passage of the law was to conform to the principle of sovereignty of the Parliament whilst at the same time meeting its obligations under the EC (Cappelletti et al p. 314). Incidentally, this principle also underpinned the Human Rights Act of 1998, a law that incorporated the provisions of European Convention on Human Rights to domestic legislation. In specific terms, the supremacy of the EC law means that any domestic law which comes in conflict with EC law becomes invalid, an effect that is also retroactive. It gives implicit powers to the national courts to refuse application of domestic laws that are in contravention to EC law. As earlier stated, EC law may or may not be of direct application. Evidently, there is not much difficulty when EC provisions are applicable directly but when they are not, the national courts are obligated to make a judgment call on whether such national law is in conformity or not with EC law (Raitio p. 111) and when they are not the national law must be set aside (Kaczorowska p 345) as was held in Factotarme cases (Ward p. 24). In the case of Åklagaren, the Swedish court was called upon to determine whether a national legislation was in conformity with the terms of an EU directive. EU Directive 94/25 was not of direct application as it provided for Member States to pass their respective legislation to implement the directive and, notwithstanding its terms, to pass contrary laws if the same serve the end of protecting their environment and natural resources. Indirect application of EC law occurs when an EU directive needs Member States to pass respective national legislations for their implementation as in the Åklagaren case. In the event the national legislation is assailed as contradictory to the EU directive, the ball falls into the hands of the national court. The court may, if the circumstances warrant, resort to referral for a preliminary ruling to the ECJ under Article 234 of the EC law. Under this provision, the national court or the court of last instance, as the last course of judicial remedy, could ask the ECJ to give its ruling on a specific question before it makes its own. Under the aforesaid article, this is an obligation of a court, considered as the last judicial resort, to refer a question to the ECJ when it is confronted with a Community law question. Subsequent ECJ decisions, however, have watered-down this provision with several exceptions: when the question is irrelevant; there had been a previous interpretation of the question by the ECJ, and; the answer/application is evident precluding necessity to elevate the question to the ECJ (Le Sueur et al, p. 350; Ginsberg p.116). In the Åklagaren case, the Swedish national court made a referral for preliminary ruling to the ECJ when it was confronted with the question of whether the Swedish national legislation was contrary to EU Directive 94/25. The said directive, taking effect on January 2005, provides for the safety characteristics of recreational crafts with the end purpose of removing further barriers to free trade by harmonising watercraft requirements in Member States. An additional proviso allows member states to pass regulations regarding certain waterways provided craft specifications are not altered and if such are for the purpose of protecting the safety and health of persons, property or the environment. The Swedish government subsequently passed a regulation made applicable in July 2004 prohibiting the use of jet-skis in waters other than the general waterways but granting power to the local authority to regulate the use of jet-skis in certain types of waters not classified as general navigable waterways if jet-skis will not pose disturbance in already heavily-trafficked waterways, if waters have no possible value in “natural and cultural environment, biological diversity, outdoor life, recreational or professional fishing,” and if they will not pose a threat to surrounding fauna and flora. Two persons were subsequently caught violating the national legislation. A preliminary ruling was submitted by the Swedish Court to the ECJ to clarify whether the directive in issue in connection with EC Law s. 28 and s. 30 precluded member states from passing legislations prohibiting the use of watercrafts on waters other than designated waterways, considering that the question posed was relevant and new. In determining whether particular national laws are in conformity with EC laws, courts must apply certain universal principles of law to arrive at a certain level of legal certainty. National courts of Member States, for example, must be able to balance the interests of private parties to that of the interest of the EU. The EU, on one hand, seeks the harmonisation of laws among member states to diminish barriers to free trade but private parties, on the other hand, must not suffer discrimination or prejudice on account of the EU objectives. This is called the balancing act under the principle of proportionality, which courts, in deciding, must take into account. In one case, the ECJ remarked: “As regards unwritten Community law, the Commission observes that the substantive constitutionality of the obligation to reveal identity can only be placed in doubt, under German Constitutional law, by the principle that the means must be proportionate to the end. This results from the principle of the State founded on the rule of law” (Raitio p. 117). In the Åklagaren case, the ECJ stressed that the principle of proportionality can be arrived at in the implementation of the Swedish regulations, making them not inconsistent with the EU directive, if they comply with the following: the issuance of implementing measures; the exercise by the local authorities of the powers granted them in designating waterways fit for jet-ski use, and; the provision of reasonable period between the effectivity of the legislation and the implementing measures. To decide on whether these conditions are all met is up to the national court to determine. References Åklagaren v Mickelsson and another [2009] All ER (EC) 842. Cappelletti, Mauri & Seccombe, Monica. Political Organs, Integration Techniques and Judicial Process, Volume 1, Book 2. Walter de Gruyter, 1986. Ginsberg, Roy. Demystifying the European Union: The Enduring Logic of Regional Integration. Rowman & Littlefield, 2007. Kaczorowska, Alina. European Union Law. Taylor & Francis, 2008. Le Sueur, Andrew & Herberg, Javan William & English, Rosalind. Principles of Public Law. Routledge, 1999. Raitio, Juha. The Principle of Legal Certainty in EC Law. Springer, 2003. Ward, Angela. Judicial Review and the Rights of Private Parties in EC Law. Oxford University Press, 2000. Read More