Article 234 of the EC Treaty in Relation to ECJ and National Courts - Essay Example

Running Head: The E C J has distorted the purpose of the preliminary ruling procedure Article 234 of the EC treaty in Relation to ECJ and National Courts [Name of the Student] [Name of the University] “The European Court of Justice has distorted the purpose of the preliminary ruling procedure, as set out in Article 234 EC. The relationship between the national courts of the European Union’s Member States and the ECJ has been moulded into one characterized by hierarchy and subservience, as opposed to one reflecting a position of co-operation between equals”. In the sequel the above statement will be discussed in detail, by referring to the various relevant rulings of the ECJ and the dissatisfaction expressed by its detractors. Instances of non-compliance with EC law by the member states have compelled the European Court of Justice or ECJ, to formulate a general principle of state responsibility. This state liability is the result of the fact that EU Member States have to perforce, implement and enforce the EC law. Further, it is the duty of the national courts to decide on cases entailing violation of EC law granted rights of individuals. The doctrine of supremacy of Community law, which is well entrenched, states that the national law of the member states is subservient to the Community law. This doctrine applies not only to primary but also to secondary Community law and in case of a dispute between Community law and national law; the Community law has to be accorded predominance over the national law. Article 10 of the EC describes the various obligations that Member States have to fulfil in order to comply with the EC law. The preliminary reference procedure set out in Article 234 of the EC defines a formal relationship between the European Court of Justice and the national courts. The importance of this procedure lies in the fact that it is used to establish consistent rules, which the national courts have to follow in order to enforce EC law. The result was that the national courts became part of a “supra-national judicial hierarchy, with the European Court at its apex1.” Under the aegis of Article 234 EC, the ECJ developed the judicial system of the EU. As per the provisions of Article 234, if any clarification are required on questions of EC law, then any ‘court or tribunal may if it considers that a decision on the question is necessary to enable it to give judgement, require the Court of Justice to give a ruling thereon’. Due to such intervention, all national courts are empowered to make direct references to the ECJ. The ECJ was allotted a paramount position in the national judicial systems by Article 234 EC, which states that “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.2” A number of difficulties arise due to the fact that at times national courts might prefer to enforce national laws and in general the familiarity with their own national law will be superior to Community law. The European Court of Justice has been very active in engendering European integration and could be even designated as its principal actuator. The majority of the rulings given by it that have proved conducive to strengthening the bulwark of the European Community law were those made in the context of the preliminary reference procedures of Article 234 of the EC Treaty. The doctrine of supremacy was established by the ECJ in Costa3 and Simmenthal SpA4. The very important concept of direct effect of EC law was formulated in Van Gend5 and the existence of damages remedy against a Member State for breach of EC law was firmly established in Francovich6, Brasserie du Pêcheur7, Factortame8 and Köbler9. Article 234 of the EC Treaty defines the preliminary reference procedure. This procedure has gained universal acceptance by the national courts. As a result, the law on the preliminary reference procedure has exhibited considerable development. According to the preliminary reference procedure described in Article 234 of the EC Treaty, the interpretation and judicial development of Community law has been vested solely with the ECJ. A reference procedure can be initiated only by the national court and the judicial process has to be kept in abeyance till such time as the ECJ’s clarification or direction has not been obtained. Subsequently, the national court has to apply the ECJ’s clarifications to the case on hand. The drawbacks of this procedure are first, the national court need not approach the ECJ for clarification of the Community law, holding that the matter to be decided is sufficiently clear and that no interpretation is required, this is termed as acte clair10 or that precedent exists in respect of proper interpretation of the EC law, this is known as acte éclairé11. Second, the ECJ has applied the term court or tribunal “against whose decisions there is no judicial remedy” in Article 234(3) EC as being the highest courts in the national hierarchy and not as the highest court in the case. The result is that only a few national courts are required to approach the ECJ as per the provisions of Article 234(3) of the EC12. With the massive expansion of Union activities it has become essential to countenance references in respect of a multitude of complex and technical issues as the “European law is no longer confined to the realm of trade and commerce, but reaches into the nooks and crannies of national life”13. Many amongst them pertain to “highly sensitive areas – both in political and human terms – [that] require effective, transparent and above all speedy court procedures”14. The Report by the Working Party on the Future of the European Communities’ Court System15 was the result of a detailed study by a group of ECJ judges with Ole Due, the former president of the ECJ, as its leader. This report was tabled in 2000 and endeavoured to examine the Community court system’s functioning. Its main objective was to reduce the back log of cases in the ECJ and to make the procedures of the ECJ more expedient. This report made a detailed examination of the relationship between the ECJ and the national courts16. A very important characteristic that this report highlighted was that the national courts and the Community courts were to follow a system based entirely upon cooperation and dialogue rather than any hierarchical system between the national courts and the ECJ. Therefore, the report suggested that a reference was to be construed as a dialogue between the national court and the Community court. However, in reality the relationship between the ECJ and the national courts does not seem to be only a dialogue or a partnership, because the EU’s main objective is to ensure that Community law is uniformly implemented in the member states. Moreover, to bring about this aim, it is essential to ensure that the preliminary reference system functions without any hindrance “and to establish for that purpose effective cooperation between the Court of Justice and national courts”17. It is of the utmost importance for the functioning of the EU that the Community law is applied uniformly and moreover, Article 234 EC is “essential for the preservation of the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances this law is the same in all States of the Community”18. In order to provide the referring court with the most useful answer19 for resolving disputes, the ECJ has commenced to furnish more concrete, as opposed to abstract, rulings necessitating complex analysis of the facts and the relevant national legislation. In Grundig Italiana20, the ECJ was required to interpret the principle of effectiveness in respect of an Italian law in respect of sums paid but not due. Despite the Advocate General Ruiz-Jarabo Colomer’s advice to the Court to provide only an abstract answer, the ECJ gave a concrete ruling21. The next year, the Advocate General made similar arguments in the Recheio case22, in respect of a Portuguese rule regarding claims seeking repayment of charges unduly levied. Once again, the ECJ gave a concrete ruling, in order to furnish the maximum assistance to the referring court23. The cases of Grundig Italiana and Recheio pertain to the ECJ’s role in ensuring effective enforcement of Community law. Furthermore, in British American Tobacco (“BAT”)24, which related to the interpretation and validity of a Community directive on tobacco products25, France and the European Commission contended that reference was inadmissible, as it was premature and as it attempted to avoid an action for annulment brought in by a private party under Article 230 EC. The ECJ admitted the reference and rejected these arguments; thereby enabling private parties to seek judicial review of Community acts, while at the same time firmly ensuring the effective enforcement of Community law rights. It follows from the wording of Art 234 that a court of final instance shall bring a case concerning the interpretation of the EC Treaty before the ECJ for a preliminary ruling, if it considers that a decision on the question of Community law is necessary to enable it to give judgment. Basically, there is only one case in which the ECJ has explained how it is interpreting this obligation, the CILFIT case decided in 1982.26 In that case the ECJ took a very wide position as to the scope of the obligation to refer cases. Quite clearly, the ECJ was eager to limit the discretion permitted to national courts of final appeal. The ECJ held in the CILFIT decision that “the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved”.27 That is acte clair and some of its characteristics as specified by the ECJ are inclusion of the characteristic features of Community law, drafting in different languages and the use of Community law terminology. With the CILFIT decision, national courts of final instance do not have a choice as to whether a question must be referred to the ECJ or not. The ECJ has treated this CILFIT principle as precedence by referring to it in the Lyckeskog28 and Köbler29 cases. In Köbler, the Court held that, Moreover, it is, in particular, in order to prevent rights conferred on individuals by Community law from being infringed that under the third paragraph of Article 234 EC a court against whose decisions there is no judicial remedy under national law is required to make a reference to the Court of Justice.30 The doctrine of State liability is inherent in the system of the Treaty31 and “is governed by certain substantive EC law conditions.” Brasserie du Pêcheur32, demonstrated that the plaintiff has to prove that the member state is in serious breach of an EC law provision that confers rights on individuals and that such breach resulted in the loss sustained. Further, Dillenkofer33 made it clear in all kinds of EC law violations committed by the State the same terms apply. As a legal construction the European Construction is incomparable. There is a great deal of diversity between its constituent members, further, there is a dearth of mutual trust and all these factors make it essential to have unambiguous and comprehensive rules to administering the dealings between its members. Moreover, it is essential to have a mechanism for arbitration and trustworthy elucidation of the law. All these requirements fall under the purview of the ECJ. Due to lack of a proper constitution in the European Union the ECJ has acted with alacrity to enforce and establish “some of the key legal principles generally found in federal constitutions.” One such very important principle is that of the supremacy of EU Law over the national law of any member state of the Union and yet another is that of the direct effect of EU Law on individual citizens. This federalism has been acknowledged in practice by national governments and courts, albeit, with a modicum of resistance. This phenomenon can also be termed as Creeping Constitutionalism and the ECJ has assumed a pioneering role as “the main instrument and the key integrator.” Several decisions taken by the ECJ, have served to enhance economic integration and a very important achievement of the ECJ in this context is the liberalization of the public sector in the member states and the Union wide implementation of the principle of mutual recognition. The jurisdiction of the ECJ extends over cases filed against the member states, conduction judicial review of the acts done by the EU’s legislature and executive, giving initial decisions in respect of references made to it by the national courts. These acts of the ECJ result in the formation of a close association and constant exchange of ideas between the ECJ, which is on the verge of emerging as the supreme court of the EU, and the lower courts of final instance of the member states of the Union, in order to bring suitable actions against the institutions of the Union. There has been a rapid increase in the number of cases that have come up before the ECJ and in 1989, the Court of First Instance was created in order to reduce the burden on the ECJ, however, even this CFI has to take up a large number of cases, which are increasing very rapidly. Since the EU legal order does not have direct enforcement powers, it has perforce to rely on respect for the rule of law in member countries. Subsequent to the Maastricht Treaty, the ECJ has been empowered to mulct member governments that fail to apply the EC Law. This has appended a very important sanction to the European Union’s arsenal. The EU’s members are on the increase and moreover, the area over which its jurisdiction extends is also on the increase all this has made implementation and enforcement of the EU Law very difficult. The significance of the ECJ has been accepted both by its supporters as well as by its detractors, which is amply demonstrated by the fierce resistance that its opponents display and offer to any attempt made to engage the “ECJ in new and sensitive policy areas, such as foreign and defence policy or the area of freedom, security and justice. The ECJ is an absolutely crucial part of the Community method of governance and all that it implies for integration and national sovereignty34.” An instance of such resistance is provided by the following incident in which, the European Court of Justice had invalidated an Austrian law requiring students belonging to other member states of the EU to establish that they had been admitted to universities in their home nations in order to be eligible for admission to universities in Austria. This decision led to apprehension amongst several academics that ineligible and sub standard students from other countries would find it easy to gain admission to Austrian Universities. The main fear amongst the Austrian Education Authorities was that a large number of German students who had failed to obtain admission in Germany due to their lack of educational caliber would inundate Austrian Universities. The Austrian Education Minister, Elisabeth Gehrer stated in this context that “A nation of 8 million people cannot offer places to study to all those who have been rejected in Germany, a nation of 80 million people”. The Austrian government left it to the individual discretion of the universities as to the strategy that they would adopt to restrict such admissions. This indicates that at times the ECJ takes decisions, which are concerned more with the maintenance of the integrity of the EU as a whole and does not give cognizance to the individual and specific problem that a member state may have to countenance35. In the absence of a request for a preliminary hearing as per the provisions of Article 234 of the EC, national courts cannot proclaim administrative acts of EC as being invalid. This clearly indicates that the national courts and national authorities are required to have the supposition, based on EC law, that the measures formulated by European Community authorities are to be construed as legal, valid and binding unless declared otherwise by the ECJ or CFI. “The teleological reasoning in the background is that divergences between the courts in the member states as to the legality and validity of the community acts would be liable to place in jeopardy the unity of the community legal order and detract from the fundamental requirement of legal certainty36.” The division of judicial roles under Article 234 embodies judicial subsidiarity in which responsibility for decision making is allocated between the National Courts and the ECJ, according to comparative institutional expertise. The ECJ has numerous reasons to defer action on any matter. The ECJ is at liberty to interpret the law in a manner, which is based on factual issues. However, such rulings rest on unsubstantiated assumptions, which are incompatible with the strict review professed by the ECJ. It is to be borne in mind that no single remedy can anticipate each and every contingency that may arise. In cases involving discrimination, stronger measures have to be adopted. Initially, The European Court of Justice was more or less inactive, but over a period of time has become very active. Gradually it came to affect the lay citizen of the European Union, whilst at the same time causing considerable aggravation to the European States. The Luxembourg based court’s decisions take precedence over national court rulings and this has rendered the latter subservient to it. Moreover, the decisions of the European Court are seen to reduce the sovereignty of the elected national governments. “With most basic laws of the EU in place, the Court is entering a new phase in its history. Judge Edward argues, Rather than tackling ground breaking issues, the judges are filling in the details, he says: ‘If you’ve got 500 more bits of legislation, you’ve got 500 more laws to interpret.’”37. Bibliography Arnull, “Judicial architecture or judicial folly? The challenge facing the European Union” (1999) 24 E.L.Rev. Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal SpA (1978) ECR 629. Case 283/81, CILFIT v Ministero della Sanità, (1982) ECJ 3415. Case 6/64 Costa v ENEL (1964) ECR 585. Cases C-178, 179, 188-190/94, Dillenkofer and others v Germany, (1996) ECR I-4845. Case C-221/88, European Coal and Steel Community v Acciaierie e Ferriere Busseni SpA (1990) E.C.R. I-495. Cases C-6, C-9/90, Francovich and Bonifaci v Italy, (1991) ECR I-5357. Case C-255/00 Grundig Italiana v Ministro delle Finanze (No.2) (2002) E.C.R. I-8003. Case C-224/01 Kobler v Austria (2003) ECR I-10239. Case C-99/00, Public Prosecutor v Lyckeskog, (2002) ECR I-4876. Case 166/73 Rheinmühlen-Düsseldorf v Einfuhr-und vorratsstelle für Getreide und Futtermittel (1974) E.C.R. 33. Case C-30/02 Recheio – Cash & Carry (2004) E.C.R. I-6051. Case C-491/01 The Queen v Secretary of State for Health, ex parte British American Tobacco (Investments) and Imperial Tobacco (“British American Tobacco”) (2002) E.C.R. I-11453. Case 26/62 Van Gend en Loos v Nederlandse Tariefcommissie (1963) ECR 3. ECJ Cases 28-30/62, Da Costa en Schaake NV v Nederlandse Belastingministraitie (1963) ECR 31. http://www.eurofound.eu.int/areas/industrialrelations/dictionary/definitions/JUDICIALENFORC EMENTOFECLAW.htm http://ec.europa.eu/comm/dgs/legal_service/docs/due_en.pdf. http://www.law.harvard.edu/students/orgs/hela/papers/Article%20Harvard%20Controlling%20M ember%20State%20Courts.doc http://www.jeanmonnetprogram.org/papers/97/97-14--I.html Joined cases C-6/90 and C-9/90 Francovich v Italy (1991) ECR I-5337. 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. Labi, Aisha. (July 29, 2005). Court Ruling Forces Austria to Revise Foreign – Student Policy. The Chronicle of Higher Education. Washington. Vol 51, Iss. 47; p A. 41. Prechal, “Administration of justice in the EU – Who should do what?” in La Cour de justice des Communautés européennes 1952-2002: Bilan et perspectives (Bruylant, Brussels, 2004). Pressley, James and Coleman, Brian. (December 26, 1995). The European Court’s expanding role is bringing in more power and critics. The Wall Street Journal. New York, N.Y. p. B3A. ISSN: 00999660. Raitio, Juha. (September 1, 2003). The Principles of Legal Certainty in EC Law. Springer. P 240. ISBN: 1402012179. Tsoukalis, Loukas. (May 1, 2003). What Kind of Europe? Oxford University Press. P. 32-33. ISBN: 0199266662. Read More