EU Law and Human Rights - Essay Example

Article 234 of EC Law The emergence of European Court of Justice has been hailed as one of the most significant events in the fifty years’ history of the European Community. The Treaty of Rome provided for enforcement of European Community Law which has finally been realized as a result of the ECJ. The Treaty envisages a vital role for ECJ in implementation of the Community Law and vests broad powers in the Court. Consequent to the recent enlargement of European Union, there are now 25 countries in which three legal systems enjoy parallel application: the respective national legal systems, the EU legal system and the European Convention of Human Rights. It follows naturally that cooperation between Constitutional (and other Supreme) Courts and ECJ are essential in order for these three systems to coexist harmoniously. The EC Treaty empowers the Court with jurisdiction over direct actions against Member States and Community institutions and by introducing the unique mechanism of preliminary reference through Article 234 of EC Treaty. The preliminary reference procedure is basically a consultation or dialog between the national court and European Court of Justice. The onus of responsibility for enforcement of Community Law rests primarily with national administrative authorities. But Article 234 empowers ECJ to ensure uniform application of the law throughout the Community. According to Article 234(a) the Court has jurisdiction to give preliminary rulings, at the request of national courts, concerning the interpretation of the Treaty. Article 234(b) empowers the Court to validate and interpret acts of the institutions of the Community and the European Central Bank. Besides ensuring uniform application of Community Law, it was through this procedure of preliminary reference that the Court developed the fundamental doctrines of European Community Law. Principles such as the doctrine of supremacy, the doctrine of direct effect, the doctrine of implied powers, the protection of human rights within the Community legal order, find their origin in preliminary rulings and have provided EU law with the necessary theoretical background that would ensure effective enforcement vis-à-vis Member State law. European Union Law enjoys supremacy over national law and may, at times, be a part of the national law. But that does not subjugate the national courts and constitutional courts to the European Court of Justice. In fact both must be viewed as parallel and thriving on a relationship of cooperation. As already stated, the preliminary reference procedure is basically a dialog between the national court and ECJ. The national court refers a question of EU law to the European Court of justice along with all the factual and legal issues surrounding the case at hand. The Court of Justice interprets EU law and provides answers to the questions of the national judge. However, it does not render a definitive judgment on the case since it does not have the jurisdiction to do so. In other words, it does not try the case. It is up to the national judge to proceed to the fact-finding, to the interpretation of the national law applicable and to the application of EU law. The European Court interprets EU law and provides the guidelines for its application by the national judge, but it is in fact the latter that applies EU law on the specific case. The preliminary reference procedure, as provided for in Article 234 of the Treaty, does impose certain obligations on national courts. Under the Article 234 procedure, where a question of EU law “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.” The prevalent understanding of this provision is widely regarded as imposing an obligation on national courts hearing a case at last instance to request a preliminary ruling from the Court of Justice, if an issue on the interpretation or the validity of EU law arises before that court. The reason for this obligation can be understood by taking into account that the preliminary reference procedure was established in order to ensure the uniform interpretation of EU law throughout the European Union. Article 234, paragraph 3, of the Treaty provides a type of safeguard. If an issue of EU law is either ignored or misinterpreted by lower courts without prior reference to the European Court of Justice, the obligation imposed on the court hearing the case at last instance under Article 234, paragraph 3, provides an assurance that the issue will normally be brought before the Court of Justice. In the past there has been much debate on whether an infringement of EU law by a supreme national court can be in anyway prevented or even sanctioned. The judgment of the European Court of Justice in the Köbler case provides ample answer to that question. Mr Köbler, whose claim was dismissed as a result of a previous case-law of the Court of Justice, brought an action for damages against the Member State (Republic of Austria) for reparation of the loss which he allegedly suffered as a result of the national court’s ruling. He maintained that the judgment of the national court infringed directly applicable provisions of Community law, as interpreted by the Court in its existing case-law. In a landmark judgment the European Court of Justice held that “in the light of the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance It must be stressed, in that context, that a court adjudicating at last instance is by definition the last judicial body before which individuals may assert the rights conferred on them by Community law. Since an infringement of those rights by a final decision of such a court cannot thereafter normally be corrected, individuals cannot be deprived of the possibility of rendering the State liable in order in that way to obtain legal protection of their rights.” But conflicts of jurisdiction and especially conflicting case-law may occur in the field of fundamental rights also in matters of substance. Especially after the upcoming adoption of the Charter of Fundamental Rights of the European Union as a binding legal text, we will be faced with a situation where, as far as EU Member States are concerned, three systems of fundamental rights protection will be applicable: national constitutions, the European Convention on Human Rights and the Charter. Nonetheless, this does not mean that the added value of a legally binding Charter will be limited. On the contrary, transparency, codification and legal certainty are of paramount importance in the field of fundamental rights protection and they cannot be effectively achieved without the introduction of a legally binding Bill of Rights. EC law infiltrates Member State laws through national labor courts in the form of various EC law doctrines. Where domestic law, permeated by EC law, is not adequately enforced, the European Court of Justice (ECJ) has developed doctrines concerning the remedies, procedures and sanctions required to achieve the effectiveness required by EC law. Naturally, this process has had its share of controversy, especially where enforcement of EC law has impinged directly on Member States. The original vision of the relation between the European Court of Justice and national courts was characterized as horizontal: each court was equal, but with differing functions. The national court decides whether to refer a question of EC law under the preliminary reference procedure, the ECJ provides an answer interpreting the point of EC law, and the national court applies the ECJ’s guidance to decide the case before it. In practice, this horizontal conception has become more vertical, due to the ECJ’s superior position. Although the procedure is formally a bilateral one between the ECJ and the particular national court making the reference, in practice it has become a multilateral relationship. The rulings of the ECJ become accepted in all other national courts when the same question of EC law arises. In this way, the preliminary reference procedure has been instrumental in developing an EC judicial system with the ECJ at its apex, handing down decisions, which bind the courts of all the Member States. Formally, national courts have complete discretion whether to refer, and even the highest court may refuse to make a reference if it decides it is not necessary in order to decide the case. Refusal to make a reference may result from the national court deciding that it is itself liable to answer any issue involving EC law. For example, there may be an existing interpretation already given by the ECJ in an earlier case and that answer leaves no scope for any reasonable doubt in deciding the case. The ECJ has been concerned to persuade national courts that references should be made. It acknowledges that the answer to the question of EC law may not be obvious, given ‘the characteristic features of Community law and the particular difficulties to which its interpretation gives rise.’ It urges the national court to bear in mind that EU legislation is in multiple languages, all equally authentic, that EC law has a terminology, which is peculiar to it, that legal concepts do not have the same meaning in EC law and Member State laws; and that a profound and detailed understanding of the context of EC law, its objectives and evolution are important for interpretation. As a result, lower courts may prefer to make references directly to the ECJ, by-passing higher courts, though higher courts may be reluctant to adopt a subordinate position to the ECJ. This disruptive effect on judicial hierarchies and constitutional linkages between the judicial, executive and legislative branches of Member States may be seen as part of the catalytic effect of the emergence of a supranational entity, the European Union. In practice, labor courts in the Member States have differed greatly in the use made of the preliminary reference procedure. Despite the uniform requirements of Article 234 EC, the number of references made by national labor courts in different Member States varies considerably. The ECJ has been sensitive to the charge of usurping the role of national courts in deciding cases. However, the technique adopted by the Court is problematic. The ECJ aims to lay down EC law principles, but leaves the application of these principles to national courts. The boundaries are often unclear. A principle may be defined in terms that leave little or no discretion to national courts; or the principle may be defined so vaguely as to provide the national court with little in the way of useful guidance. Cases involving EC law on employment and industrial relations provide illustrations. For example, the European Court has laid down the principle that indirect discrimination is justifiable on objective grounds, which must, however, comply with the general principle of proportionality – but both objective grounds and proportionality are to be left for national courts to decide The jurisprudence of certain national constitutional courts was developed in the specific field of the protection of fundamental rights and that it was based on the absence of Bill of Rights at the European Union level. The Court of Justice has since developed a comprehensive case-law on fundamental rights protection and routinely subjects EU and national legislative and administrative measures to fundamental rights scrutiny. As a result, it seems that national constitutional courts are gradually adopting a more flexible approach to that issue. Conflicts of jurisdiction and especially conflicting case-law may occur in the field of fundamental rights also in matters of substance. Especially after the upcoming adoption of the Charter of Fundamental Rights of the European Union as a binding legal text, we will be faced with a situation where, as far as EU Member States are concerned, three systems of fundamental rights protection will be applicable: national constitutions, the European Convention on Human Rights and the Charter. A multitude of sources of law with sometimes overlapping fields of application is certainly not efficient and can be the source of confusion for private individuals, lawyers and judges. The range of the protected rights and the level of protection can be different from one text to another. The risk of conflicting case-law between the Court of Justice on the one hand and national supreme courts and the ECHR on the other is always present. But these problems are by no means novel and they will surely not be the result of the transformation of the Charter into a binding legal text. The evolution of fundamental rights protection in the EU clearly demonstrates that such difficulties are not insurmountable and can be resolved in a variety of ways. Differences in the rationae materiae field of application of the Charter, of the ECHR and of national constitutions would normally be negligible due to the common long-standing tradition of human rights protection in Europe and to the overall harmonizing effect of the ECHR. Conflicting case-law, especially between the ECJ, the ECHR, and national constitutional courts has been a rare and marginal occurrence and that risk can always be minimized by a close cooperation between those Courts. European Court of Justice cannot be considered as a Constitutional Court in the sense this term is used in national legal orders. It is certainly entrusted with the authoritative interpretation of the EU’s constitutional charter, it does have jurisdiction to control the legality, with regard to this Charter, of all legislative or administrative measures adopted within the sphere of EU law and lastly it is the only judicial authority that can resolve conflicts of jurisdiction between the EU institutions. However, the Court also has jurisdiction over appeals brought against judgments and orders of the Court of first instance. It will soon have the option of reviewing appellate judgments of the Court of First Instance. In preliminary references it frequently interprets EU law provisions of minor importance. Works Cited Betten, L and Grief, N (1998) EU Law and Human Rights (London/ New York: Longman) Bradley, K and Sutton, A (1994) ‘European Union and the Rule of Law’ in Duff, A Pinder, J and Pryce, R (eds) Maastricht and Beyond (London/New York: Routledge) Campbell, T, Goldberg, D, Mc Lean, S and Mullen, T. (eds, 1986) Human Rights: From Rhetoric to Reality (Oxford: Basil Blackwell) Clapham, A (1990) ‘A Human Rights policy for the European Community’ 10 YBEL 309 Coppel, J and O’Neill, A (1992) ‘The European Court of Justice: Taking Rights Seriously?’ 29 CMLR 669 Cornell, D (1992) The Philosophy of the Limit, (New York/London: Routledge) Craig, P and de Burca, G (1998) EU Law (Oxford: University Press) Dauses, M (1985) ‘The protection of fundamental rights in the community legal order’10 ELRev. 398 De Burca, G (2001) ‘The drafting of the European Union Charter of Fundamental Rights’ 26 E L Rev. 126 Derrida, J (1992) The other heading: Reflections on today’s Europe (Bloomington: Indiana University Press) Dworkin, R (1978) Taking Rights Seriously (London: Duckworth) Dworkin, R (1998) Law’s Empire (Oxford: Hart Publishing) Eeckhout, P (2000) ‘The proposed EU Charter: some reflections on its effects in the legal systems of the EU and of its member states’ in Feus, K (ed) The EU Charter of fundamental rights (London: Federal Trust for Education and Research) Read More