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The European Courts of Justice in England and Wales

"The courts of this country cannot challenge rulings of the ECJ within its areas of competence. There is no advantage to be gained by appearing to do so. Furthermore, national courts do not make references to the ECJ under Article 234 of the EC Treaty with the intention of ignoring the result. On the other hand, no matter how tempting it may be to find an easy way out, the High Court has no power to cede to the ECJ a jurisdiction it does not have."

Laddie J. in Arsenal Football Club PLC v. Reed (No.2) [2003] 1 All ER 137

Article 234 (ex 177) is essential for the Community character of the law established by the Treaty and has the object of ensuring that in all circumstances, EC law is given the same interpretation in the National courts of every Member State. The procedure has been significant in the development of EC law as the EC Treaty is merely a framework which is filled out by the definitions, details and rulings of the European Court of Justice (ECJ) which has led to the creation of procedures which illustrate the provisions of the Treaty. The powers given to the ECJ are derived from Treaties that have been agreed on by the Member States of the Community, therefore the above statement is very accurate as no national court has any power to dictate and determine the jurisdiction of the ECJ. The High Court of England and Wales only has a limited power to apply for reference to the ECJ as it is not the highest court in the land, thus it would be especially erroneous for the High Court to make any assumptions or interpretations pertaining to jurisdiction of the ECJ or EC law as a whole. The relationship between the UK National courts and the ECJ are “vertical and multilateral”[1] as it exists on the recognition of the supremacy of EC law and its precedents and the expectation that the ECJ will remain at “the apex of the judicial hierarchy”[2] within the Community.

Jurisdiction of the National Courts of England and Wales

Jurisdiction is the authority which a court has to judge actions that are “litigated before it or to take cognisance of matters presented in a formal way for its decision.”[3] The limits of the courts are generally outlined in and imposed by charter, statute or commission under which the court is constituted and “may be extended or restricted by similar means.”[4] In regards to an Article 234 reference, there is a requirement to distinguish between the discretionary and mandatory jurisdiction. Mandatory jurisdiction affords no discretion for courts/tribunals against whose decisions there is no judicial remedy under national law, a reference must be made.[5] However, under discretionary jurisdiction other courts have discretion as to whether to apply or not to the ECJ for a ruling. A reference only becomes incumbent upon a discretionary court when an error is found during proceedings or there is a question of validity of EC law which the ECJ must interpret.[6]

After the Treaty of Amsterdam, Article 68(1) Title IV EC Treaty stated that only a court or tribunal against whose decisions there is no judicial remedy has the jurisdiction to make a reference if a ruling is necessary. This alteration has limited the right to refer and at present in the UK the House of Lords is the last court of resort therefore, a reference must be made from their proceedings unless, as mentioned before a error is found during proceedings of a lower court. There is only a limited application of Article 68(1) to the UK as the UK has opted out of the main provisions of Title IV, however it is mandatory that proceedings be suspended pending the ruling in order to ensure accurate application the action at hand. However, the UK cannot directly challenge the rulings of the ECJ as there is no direct benefit in doing so as it is likely proceedings will be issued against the UK by the commission. If the UK is left unsatisfied by an ECJ ruling the courts have the right to make another reference in order that further examination and interpretation is extracted however, complete disregard is never acceptable.

Jurisdiction of the ECJ

Jurisdiction of the ECJ was set out loosely under Article 220 of the EC Treaty and subsequently the jurisdiction of the court is only prevalent where the Treaty provides it to be so. The ECJ has no power to rule on issues relating to beaches of domestic law[7], instead it is only allowed to rule on the legality of EC/EU Law and its interpretation. However, post-1970 there has been a marked interest and incorporation of domestic law into the judgments of the ECJ, as they attempt to unify and produce harmony between the legal concepts of all member states. After the Treaty of Amsterdam the ECJ’s jurisdiction was extended to allow rulings on “questions of interpretation of the relevant Treaty provisions and to rule on the validity or interpretation of acts of the institutions of the Community”[8] on certain specific issues addressed above. Article 68(2) of Title IV EC Treaty removes the ECJ jurisdiction over international border crossings in regards to cases concerning the maintenance of law and order and the safeguarding of internal security.

The ECJ refuses to accept references in the absence of a genuine dispute,[9] on a mere hypothetical question[10] or if there is insufficient information about the factual background to case or relevant provisions of national law.[11]

Article 234 Reference to ECJ

The appropriate forum for individuals to enforce their rights under EC law is often their national courts under the principles of direct effect, indirect effect and state liability. However, Article 234 (formerly 177) EC Treaty gives the ECJ jurisdiction to give preliminary rulings concerning the interpretation of EC law and the validity of acts of the institutions of the community only through the request of national courts. Also known as the preliminary rulings procedure, Article 234’s main purpose is to ensure, by means of authoritative rulings on the interpretation and validity of EC law, the correct and uniform application of EC law by the courts of the Member States.

“Any court or tribunal,”[12] or any body which exercises a judicial function by making legally binding decisions, can make a reference to the ECJ, but a court or tribunal need only refer to the ECJ if a ruling is ‘necessary’ for the judgment. Under UK procedure a ruling will only be necessary if it were conclusive to the judgment and will not be ‘necessary’ if the ECJ has already ruled in the matter or the matter was reasonably free from doubt under the universally adopted doctrine of Acte Clair.[13] Necessity is outlined in under the CILFIT [14] criterion which states that a ruling will not be necessary if any one of the following situations arises:

  1. the question of interpretation of Community Law raised before the national court is irrelevant to the outcome of the case
  2. the question raised is materially identical to a question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case
  3. where the correct application of Community law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved and the court is convinced that the manner is equally obvious to the courts of other Member States and the ECJ.

Application of ECJ Rulings

National courts may still decide a reference is necessary even if there is an ECJ ruling on the same issue.[15] Generally, it takes 18-24 months for the ECJ to make a complete interpretation and all rulings are interlocutory. Interpretation of the ruling and response to the ruling is binding on the court making the application. The interpretations apply equally to all Member States irrespective of the origin of the reference in order to maintain the even-handedness and universality of EC law application across the EU. The UK is bound to comply with Treaty obligations under Article 10; thus, all UK courts must adhere to ECJ rulings and consider and implement EC law. In some cases this may require the court to refuse to apply conflicting provisions in national law in favour of the ruling.[16] Rulings of the ECJ are retrospective except in certain cases. The exceptions exist where the ECJ may declare that its ruling has only prospective effect if making it retrospective could lead to serious economic repercussions[17] or if the ECJ rules that a piece of EC law is void.


BARNETT, H. (2002) Constitutional & Administrative Law 4th Edition London: Cavendish Publishing Ltd.

CRAIG, P. AND DEBURCA, G. (1996) EC Law Text, Cases & Materials Oxford: Clarendon Press.

PENNER, J.E. (2001) Mozley & Whiteley’s Law Dictionary 12th Edition London: Butterworths.

TILLOTSON, J. (2002) European Union Law: Text Cases and Materials 3rd Edition London: Cavendish Publishing Ltd.



[1] Craig (1996) page 445.

[2] ibid

[3] Penner (2001) at page 193.

[4] ibid

[5] See Flaminio Costa v Enel (Case 6/64) [1964] ECR 585.

[6] See Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4199.

[7] Flaminio Costa v Enel (Case 6/64) [1964] ECR 585.

[8] Barnett (2002) at page 264.

[9] See Foglia v Novello (No.2) (Case 244/80) [1981] ECR 3045.

[10] See Meilicke v ADV/ORGA AG (Case 83/91) [1992] ECR I-4871.

[11] See Telemarisicabruzzo v Circistel (Case 320-322/90) [1993] ECR I-393.

[12] Broekmeulen v Huisarts Registratie Commissie (Case 246/80) [1982] 1 CMLR 91.

[13] Da Costa en Schaake NV v Nederlandse Belastingadministratie [1963] ECR 31. See also R v International Stock Exchange, ex parte Else Ltd. [1993] 2 CMLR 677.

[14] CILFIT srl v Ministro della Sanita [1982] ECR 3415.

[15] ibid

[16] See Simmenthal v Commission (Case 92/78) [1979] ECR 777.

[17] See Defrenne v SABENA (No.2) (Case 43/75) [1976] ECR 455.

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