The European Court of Justice - Essay Example

The European Court of Justice Question No Explain: (a) when the ECJ would refuse to accept a reference under Article 234 on preliminary references procedure, and; (b) the guidelines for top courts (courts of last instance/resort) and other national courts whether a reference under Art 234 should be made to the ECJ when the question to be raised is in regard to the interpretation and/or validity of EC law Ans. (a) The ECJ will refuse reference to it under Article 234 under the following circumstances: one, when it has no jurisdiction over the subject or question of law brought before it, and; second, when the referring body has not complied with the basic requirements prior to its referral of the question. Jurisdiction over the subject. For the ECJ to have jurisdiction over a case, such a case must be concerned with a subject over whom the ECJ has jurisdiction. There are only three subjects over which ECJ has jurisdiction namely: the interpretation of any of the provisions of the European Union Treaty; when the question calls for the interpretation or validity of the acts of any of the EU commissions or the European Union Bank (EUB), and lastly; the interpretation of statutes or laws passed by a body which has been established by the Council, but only if the statute or law so provides that it shall be subject to ECJ’s interpretation (Lazowski 2007). Fulfillment of jurisdictional requirements by the referring body. There are three things which the referring body must meet or possess before the ECJ accepts any referral from it under Art. 234 and these are the following: the body referring the question to the ECJ must necessarily be a “court or tribunal of a member state”; the question being referred to is concerned with the validity and interpretation of the Community law, and; the resolution of the question being referred to the ECJ is necessary so the court of origin can render its decision (Lazowski 2007). The determination of whether a body is a court or tribunal is a very important factor because it is one of the basic qualifications and requirement in reference under Art 234. The terms “court or tribunal’ has no fixed definition under any statutory law but only in case laws where the ECJ itself has defined it through a number of cases. In the case of Abrahamsson C-407/98, the ECJ held: “ In order to determine whether a body making a reference is a court or tribunal for the purposes of Article 1777 (now Art 234) of the Treaty, which is a question governed by the Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of laws and whether it is independent” (Lazowski ud). The trouble is ECJ has been equivocating on this definition in a number of subsequent cases that the terms “tribunal and courts” are losing their exact meaning.. In the case for example of Consiglio di Stato (Council of Italy), the Court held that the Consiglio is a tribunal notwithstanding that it is obviously an administrative body belonging to one of the governmental departments. In another subsequent case however, Corbiau v. Administration des Contributions [1993 ECR I-1277], the same body denied the request for preliminary ruling by the Tax Director of Luxembourg because as an administrative body it is dependent upon tax authorities of the country (Batta 2007). In bodies regarded as exercising quasi-judicial powers, the ECJ has held in the case of Walter Schmid v. Finanzamt fur den 9, 18 und 19 Bezirk in Wein [2002] ECR I-4573, that the acceptance of their references may be conditioned on their independence from the administrator and separation powers (Batta 2007), the latter a little vague considering that as an administrative body it is most likely attached to a government department. Anent the issues that are submitted for reference to the ECJ, they must be beyond being hypothetical but are actual subjects of disputes and these issues must be pre-judicial or necessary for the court of origin to be able to come out with its decision of the case before it (Davies). There are also grounds for refusal by the ECJ under Art. 234 which can be found in several cases: in Foglia v. Novello, the Court refused referral on the ground that the case was intentionally created as a test ground for foreign law; and in several cases (the Telemarsicabruzzo case, Pretore di Genova case, Monin Automoblies, Vaneetveld v SA Le Foyer) ECJ refused reference on the ground that the referral showed no manifest and cogent reason why ECJ should rule on them (Batta 2008). (b) According to Dr, Adam Lazowski, the courts of last resort and the national courts shall ensure that the conditions are met before making a referral to the EC. For instance, the court must confirm that the EU law is applicable and has a bearing to the question being referred. It must also be remembered that the ECJ has no prerogative to check if the domestic law conforms to the EU law. In addition, there are only a few EU laws which can be applicable to reference proceedings and they are: EC Treaty; Euratom Treaty; for amendatory treaties, only parts covered by ECJ jurisdiction; conventions in the lllrd pillar, and; accession treaties. Furthermore, issues that are hypothetical are not referable and the question must therefore be not premature but already in dispute. As previously stated it is important for the court to show that the question involved is prerequisite to the decision of the referring court and courts must point out why the decision of the ECJ is necessary. Dr. Lazowski likewise pointed out that referral cases almost take two years to decide therefore judges must ensure that no prior ruling has been rendered in a similar case in the past. Question No. 2. Can the following UK bodies ask the ECJ for a preliminary ruling? If so, should they make a request? (a) An employment tribunal hearing a case about sex discrimination, involving the interpretations of an EC directive. Ans. Yes. On the basis of the Schmid and other similar cases, a quasi-judicial body might be allowed to ask for a preliminary question if the body is “independent from the administrator,” “permanent and impartial” and is called to apply the laws of the state. A request for a preliminary question is therefore valid in this case. (b) The disciplinary committee of the Association of Professional Widget makers, hearing an allegation of sex discrimination. Ans. No. The disciplinary committee is not a tribunal or a court and has no legal standing therefore to ask for a preliminary question to the ECJ under Art 234. It is not a body created by law, there is no certainty as to whether it is a permanent organization and moreover, it is a private organization concerned only with its own business. In addition the issue does not involve a subject within the ECJ jurisdiction which includes interpretation of the provisions of the EU Treaty, validity of the acts of the EU commissions or the European Union Bank, and the interpretations of statutes or laws passed by bodies established by the Council. (c) The Court of Appeal, which is convinced that the issue of EC law raised by the plaintiff is irrelevant and unarguable and that the case is not worth referring to the House of Lords. Ans. No. At the outset, the case at bar would seem to fit the basic requirements set forth by the ECJ in the referring of cases to it under Art 234. The CA is a national court and the question refers to an EC law. However, the premise upon which the Court is referring the case to the ECJ is wrong. The only reason, as per the provision of Art 234, that a national court must refer a case to the ECJ is that the resolution of that issue is material and necessary so that the national court can decide the merits of the case. In the case at bar, the reason why the court of Appeals is referring the case to the ECJ is because it thinks that the issue is not relevant which means to say that it can on its own reject the issue and render its decision and a reference is not warranted. The necessity angle is therefore lacking (d) The House of Lords, which has to decide whether a particular UK statute is in breach of EC law and is sure from its reading of EC law that it understands the meaning of the EC law in question. Ans. No. Aside from the fact that issues brought before the ECJ on a reference under Art 234 should be issues that are in actual dispute and not hypothetical issues, the ECJ is not empowered to ascertain whether domestic laws are in compliance with the EC laws (Freestone 1988). Therefore, the case at bar is not a case for reference to the ECJ. In addition the referral is generally in the form of a decision which means that there should be parties involved (CURIA) (e) In April 2007, EU foreign ministers agreed to implement sanctions against Iran following its refusal to halt uranium enrichment. One of the measures against Iran calls on states to prevent Iranian nationals from studying sensitive subjects. The UK Home Office wants to deport an Iranian PhD candidate researching micro-biology but not sure if this area of study is covered by the EU sanctions regime. Ans. No. The UK Home Office is not a court or tribunal within the ambit of Art 234 since the UK Home Office does not exercise judicial function but only administrative functions and it is not independent from the administrator of the department. It does not conduct proceedings in an adversarial manner and is not expected to be an impartial adjudicator. References: Batta, Denis2007. ‘The Relations Between National Courts and the European Court of Justice in the European Union Judicial System’. Directorate General Internal Policies of the Union. Davies. ‘Understanding Union Law 2/e.’ Cavendish Publishing. P. 65. Freestone, David.& Davisdon, J. 1988. ‘The Institutional Framework of the European Communities’. Routledge. p 154. Lazowski, Adam. ‘Cooperation Between the National Courts and the European Court of Justice.’ http://209.85.173.104/search?q=cache:FnBlvlr_vCgJ:eu.pravo.hr/fileadmin/Europsko/dokumenti/Powerpoint/Lazowski_Art_234.ppt+Co-operation+between+national+courts+and+the+European+Court+of+Justice&hl=en&ct=clnk&cd=7&gl=ph&client=firefox-a ‘The Composition’. The Court of Justice of the European Committees. http://curia.europa.eu/en/instit/presentationfr/index_cje.htm Read More