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Published: Fri, 02 Feb 2018

The community law forms part of member states

The Majority of cases decided by the ECJ are in the response to preliminary reference procedure by the national courts under Article 267 TFEU. The purpose of Article 267 is to ensure the uniform interpretation and application of Community law. The court gives an interpretation of Community law a step in proceedings before the national court. The preliminary reference system has been very successful. It has conferred wider jurisdiction on the national courts within the scope of application of Community law. The article is based on the co-operation which entails a division of duties between the national courts and the Court of Jusice in the interest of proper application and uniform interpretation of Community law throughout all Member State.(Case 244/80 Foglia v Novello (No.2) (1981).When a question of interpretation of a Community act is raised in a national court, the ECJ may or sometimes must be requested to give a ruling by the national court. This ruling indicates to the national court what its decision on the point should be, but it is the national court which makes the final decision. It is not an appeal procedure.It is an example of shared jurisdiction, depending for its success of mutual co-operation.The preliminary reference procedure has proved to be a major contributor to the development of Community law.This development began when the court ruled in Case 26/62 Van Gend en Loos that individuals could also rely on Community law under certain conditions before their national courts in order to assert their Community rights.Thus,the doctrine of direct effect of Comminty law has opened the possiblity to individuals to have access to the ECJ through their national courts in cases where they would not have standing to have direct access to the ECJ.Thus,the individual may indirectly challenge action by Member States or Community institutions before the ECJ and obtain a ruling from the court which will give him/her the possibility to obtain an appropriate remedy from the national court. The ECJ cannot, in Article 267 proceedings ,rule on the compatibilty of a provision of national law with community law.The ECJ can, however ,provide national courts with all those elements, by way of interpretation of Communtiy law which may enable national courts to assess the compatibilty[C-241/89 SARPP(1990)].In cases C-143/88 and C-92/89 Zuckerfabrik Suderdithmarschen AG v Hauptzollant Itzehoe (1991) the validity of a national measure implementing Community legislation was challenged on the basis that the Community measure itself was invalid.Moreover,in order to ensure the uniform interpretation of a provision of Community law ,the ECJ has jurisdiction to give preliminary ruling on the interpretaion of a Community law in the particular case where the national law of a Member State referred to the content of that Communtiy provision, in order to determine the rules application to a purely internal situation in that Member State.In C-197/89 Dzodzi v Belian State(1990) the court said that it would not look into the circumstances which had prompted the reference,since the questions submitted questions submitted by the national court concerned the interpretation of a Community law provision.Under the preliminary reference procedure the court will,in principle ,only give an interpretation of Community law and advise a national court on the application of Community law,nor will it order a national court to declare its national law invalid.In Case 106/77 Simmenthal the Court went beyond while interpreting Community law,it held that a national court must apply Community law in its entirety within its jurisdiction and set aside any national law,whether prior or subsequently,which may conflict with it,the Court held in C-22/97 Minister delle Finanze v INCOGE (1990) that this did not mean that the incompatiblity of a nationa rule adopted subsequently to a Community rule had the effect of rendering that rule non existent.Despite national courts being bound by the ECJ ,the Court has taken pains to point out that it is not in any way senior to the national courts,but merely has a different task from one that they perform.In reality,however ,the ECJ undoubtedly enjoys a superior position,employing national courts as enforcers or appliers of Community law.

Under Article 267(3) TFEU only a court or tribunal of a Member State may refer questions to the ECJ.The ECJ has accepted refernces from a variety of courts and tribunals,including arbitration panels,insurance officers and admininstrative tribunals(The reference in Van Gend came from Dutch Administrative Tribunal).Hence, the meaning of the expression court or tribunal is not confined to the central judicial arms of the state but extends also to other tribunals which are authorized to give rulings of a judicial nature.In Case 102/81,Nordsee a request for ruling was made by an arbitration tribunal that had been established by a contract,the reference was consequently refused.In Case 246/80 Broekmeulen(1981),the ECJ defined the essential characteristics of a ‘court or tribunal’.The ECJ has indicated the relevant factors,that the ‘court or tribinal’: is established by law, is permanent,has compulsory jurisdiction,has procedures that are inter partes and apply rule of law.According to second paragraph of Article 267(2) a national court or tribunal will only need to make a reference where it considers that its decision in the immediate case restson a point of Community law.Article 267 TFEU makes it clear that it is for the national courts to decide when a refernce is to be made and not the parties to a case or any other party or authority,including the ECJ.In Bulmer and Bolinger (1974) Lord Denning laid guidelines as to when to make a reference,These were: (a)The decisions on the question of Community law must be conclusive of the case. This follows from the wording of Article 267(2) TFEU that a’ decision on the question is necessary to enable it to give judgment’.(b) The national court can follow a previous ruling of the ECJ but it may also resubmit a question in the hope of getting a different ruling.(c)Where the point is ‘reasonably clear and free from doubt ‘it may use the doctrine of acte clair and not refer. and (d) It is best to establish the facts before making a reference. These guidelines decide whether a reference is ‘necessary’. The national court still has a discretion which it should exercise with regard to the following guidelines courts should bear in mind factors such as length of time of time and extra cost of proceedings , adding unnecessary workload to the ECJ and formulate the question clearly.

Under the third paragraph of Article 267(3) TFEU, a court or tribunal of a Member state against whose decisions there in no judicial remedy under national law shall bring the matter before the Court of Justice. In C-6/64 Costa v Enel (1964) a request had come from an Italian magistrates’ court.There was no appeal from the magistrates’ decision due to the small amount of money. The ECJ ,By the term of this Article national courts againnt whose decision there is no judicial remedy, must refer matter to the Court of Justice. The statement is slightly ambiguous as to whether what is meant by the final court in the particular case. The ECJ in two cases tried to solve this dilemma but it is completely not clear as far as the UK courts are concerned. In C99-00 Lyckeskog (2002),it was held where an appeal was possible to the Swedish Supreme Court, but that court did have a discretion as to whether to take the appeal, the Swedish District Court should not be considered as the court of final appeal for the purpose of Article 267 TFEU .In C-453/00 Kuhne and Heitz ,the case concerned a final decision of an administrative body which was based on a misrepresentation of Community law by a national court at last instance and that court has not referred the question to the ECJ for a preliminary ruling. The ECH held it was not mandatory for a court of last appeal to refer. The Court has laid down what are known as the CILFIT exceptions to the obligation to refer. There is no obligation to refer:(a) If the question of Community ;aw will not determine the outcome of the case.(b) Where the ECJ has already given a ruling on the question, even if the questions at issue are not identical and (c) where the matter is Acte clair. The ECJ stated that the national court or tribunal must be convinced that the matter is equally obvious to the courts of other Member States and to the ECJ itself, and that the national court must bear in mind the multilingual nature of Community law. The ECJ stipulated that the national court should compare the different language versions of the particular provision and reminded the national courts that every provision of Community law must be placed in its context and interpreted in the light of Community law as a whole. It was clearly intended to be used quite frequently by national courts of final appeal.

According to the ECJ in CILFIT(1982) ‘the correct application of Community law may be so obvious as to leave no scope for any doubt as to the manner in which the question raised is to be resolved’. This would entitle a national court of last resort to decide to decide not to invoke the Article 267.A decision not to request a ruling because the provision is so obvious as to leave no scope for reasonable doubt is an example of acte clair ,a doctrine developed from the French law. It applies where the ECJ has already a clear ruling on the same point in a previous case.In Bulmer and Bollinger (1974) the Court of Appeal enthusiastically endorsed acte clair.Hence, there was no need to interprete the Treaty but only to apply it and that was the task of the English Court.Similary in Garland v Brel (1979) there was an immense body of case laws that the answer was obvious and inevitable then a reference was not required.The concept of acte clair is an extremely important in cutting out unnecessary , time consuming requests.However it can be abused as happened in R v Chief constable of Sussex where the House of Lords declined to seek rulings on the interpretation of Article 29 and Article 30 as there may be a possibility as the end result may not be certain.The Doctrine of Acte clair attracted many academic reactions but the opinion is divided about the criteria to be satisfied by national courts before invoking the doctrine.According to Professor A Arnull ‘The overall effect of CILFIT would be tou encourage national courts to decide points of Community law for themselves.Whereby Professor Rasmussen is highly critical of CILFIT.He believes that the CILFIT criteria is so stringent that taken as a whole the judgment achieves the opposite of what the Court said it intended to do.Therefore, it may enable courts to ‘bypass’ Community law,which could have an effect on the uniformity and effectiveness of Community law.He repeated his criticism in 2000,calling for the ECJ to rewrite the CILFIT(1982) judgement to make acte clair more easily available.

In conclusion, the availability of preliminary references has had a number of important consequences.It had forged the link between national legal systems and the EC legal system.Without such rulings national courts and the ECJ would remain isolated from one another.Most importantly the availability of a reference affords a national courts an opportunity to familiarize themselves with the Community legal order.

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