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«Policy Department C.: Citizens' Rights and Constitutional Affairs Unit THE RELATION BETWEEN NATIONAL COURTS AND THE EUROPEAN COURT OF JUSTICE IN THE ...»

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Policy Department C.: Citizens' Rights and Constitutional Affairs Unit







February 2007 EN PE 378.291 JANUARY 2004 Directorate-General Internal Policies Policy Department C Citizens Rights and Constitutional Affairs The relation between national courts and the European Court of Justice in the European Union judicial system − preliminary ruling regimes according to Articles 234 EC, 68 EC, and 35 EU



The Treaties set up an integrated judicial system between national courts and the European Court of Justice (ECJ), in which national judges are at the forefront of the application of Community law in the Member States. The co-operation between national courts and the ECJ is organised by the procedure of reference of national cases to the ECJ for preliminary ruling on the interpretation and on the validity of EC rules, provided for in art. 234 EC.

The note analyses the scope of this provision, the conditions of its use by national courts and the consequence of the preliminary reference on national law.

The note further investigates the question of liability of national judges for failing to request a preliminary ruling by the Court of justice.

The Treaty of Amsterdam introduced in art. 68 EC a variant of the preliminary reference procedure in the area of Title IV of the EC Treaty, which is limited to national courts of last instance and with the exclusion of certain areas of competence.

[N° PE] The Treaty on the European Union has also established a procedure of preliminary ruling in its art. 35 EU, although submitted to a declaration of opt-in by the Member States, a limitation in the national jurisdictions entitled to make reference and an exclusion of certain N of competence.

areas The European Commission and the Court of Justice recently proposed to the Council to abolish the specific regime of art. 68 EC to fully submit Title IV of the EC Treaty to the regular reference procedure of art. 234 EC.

The note also gives a survey of the effective use of the reference procedure by national jurisdictions.

PE.378.291 denis.batta@europarl.europa.eu - www.europarl.europa.eu B-1047 Bruxelles - Tél +32 2 28 41089 - Fax +32 2 28 32365 This note was requested by: The European Parliament's Committee on Legal Affairs This paper is published in the following languages: EN Author: Denis BATTA - Trainee: Sarka Havrankova Manuscript completed in February 2007

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Informations on DG Ipol publications: http://www.ipolnet.ep.parl.union.eu/ipolnet/cms Brussels, European Parliament The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.

Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy.

1. Introduction: scope of research The EU judicial system may be seen as split into two main branches − national courts and the European Court of Justice (ECJ).

National courts apply Community law on a daily basis and must uphold Community law when it contravenes with national laws. In this sense, the national judge is traditionally seen as the first judge of European law, to whom parties may refer litigations and requests based on EU law.

However the authors of the Treaties have not left the national judge on its own to decide on issues related to EU law.

The Treaties also organise a system of preliminary ruling procedure as a main communication channel between national judges and the ECJ, by which national courts may refer contested questions of interpretation or validity of Community law to the European Court of justice (ECJ).

As a judicial body, the ECJ acts independently of national governments and of the other EU Institutions. The Court is responsible for giving the right interpretation of Community law and assuring its uniform application throughout the Member States.

Indeed, in their daily practice, national courts might deal with cases where the validity of Community legislation is contentious but, in such cases, national courts are not entitled to declare Community legislation invalid themselves.

There are now 3 preliminary ruling regimes in EU law. The first and most important is the general procedure according to Article 234 of the EC Treaty. The initiators of this procedure may only be national courts (both lower courts and courts of last instance) requesting the ECJ to rule on the interpretation or the validity of Community law.

The second preliminary ruling regime under the EC Treaty is organised in the area of freedom, security and justice by Article 68. In comparison to Article 234 EC, it introduces stricter conditions on the scope of referred questions and courts entitled to make a referral.

Unlike Article 234 EC allowing both lower national courts and courts of last instance to make a reference, Article 68 EU empowers only courts of last instance. Article 68 EC also prohibits the Court of justice to give preliminary ruling on questions relating to the maintenance of law and order and the safeguarding of internal security1.

A third preliminary ruling regime is provided in the area of policy and judicial cooperation in criminal matters by Article 35 of the EU Treaty. This provision allows the Member States to opt for a preliminary reference procedure and to choose whether all of their national courts or merely their courts of last instance will be entitled to make this referral. A limitation See section 10 for a deeper analysis similar to the one of art. 68 EC applies to questions related to "the maintenance of law and order and the safeguarding of internal security".

Irrespective of the type of preliminary ruling regime, national judges always act as gatekeepers of the preliminary reference process. Their intervention is crucial because the authority to make a reference is vested with them. Therefore, the demand for a ruling becomes operative only when national courts request the ECJ to deliver a judgment on the matter of Community law.

The cooperation of national courts is a sine qua non for the success of the preliminary reference procedure and, consequently, the very development of the Community legal order.

As a matter of fact, legal integration and the implementation of ECJ case law also rely on the willingness of national courts to refer cases to the ECJ.

In the light of these considerations, this background note will analyse the preliminary ruling regimes according to Article 234 EC, Article 68 EC, and Article 35 EU. It begins with examining the Acquis communautaire on preliminary reference. The discussion then follows with analysing the role of national courts and the ECJ in the EU judicial system. After examining the prerequisites to refer questions of Community law to the ECJ, it presents a case law on preliminary references developed by the ECJ on the basis of the EC Treaty and EU Treaty. It further analyses the conditions for the liability of the authorities in the Member Sates for a wrong application of Community law, including the non use of the preliminary reference procedure. Special sections are also dedicated to the specific regimes of preliminary ruling under art. 68 EC and art. 35 EU. The background note ends with global considerations on the preliminary reference procedure as such and its use by the different national courts. It concludes on summoning the importance of the preliminary ruling mechanisms in the EU legal system and the necessary evolutions to maintain its crucial role in the development of EU law.

2. Principles of applying Community law by national courts

The relation between national laws of the Member States and Community law is based on three key principles: the doctrine of supremacy, direct effect (applicability), and enforceability of Community law in the Member States. According to the supremacy principle, recognized by the famous ruling in Costa v ENEL 2, national laws of the Member States are subordinated to Community law.

The supremacy of Community law over national laws is not enshrined in the Treaties. In fact, none of them contain provisions stating that Community law takes precedence over national laws. Similarly, the principle has not been endorsed in any subsequent revisions of the Treaties.

C-6/64, Flaminio Costa v. E.N.E.L., [1964] ECR 585.

According to the direct effect principle, established by the famous ruling in Van Gend en Loos 3, rights conferred on individuals by Community legislation should be enforceable by those individuals in national courts. Courts (potentially tribunals) of the Member States are obliged to apply and interpret national laws. Due to the differing nature of national laws and the means of interpretation, however, there is a risk that Community law might be interpreted in markedly divergent ways. Since the Treaties remain silent on the issue of potential conflict between national laws and Community law (including means how to solve such a conflict), there was a need to develop a set of rules indicating which legal norm is prevalent in case a clash arises.

In this sense, the ECJ has created a system, in which Community law precedes conflicting laws of the Member States. For the sake of conflict prevention, national courts in the Member States shall interpret the law in a way that does not contravene with Community provisions. This procedure, however, can be quite demanding in terms of constructive and/or narrow interpretation of national laws. Due to this shortcoming, potential conflicts may arise.

If they arise, then national courts of the Member States are obliged to uphold Community law.

While this is quite simple in theory, practical connotations might involve some obstacles. The governments might try to keep the incompatible legislation, which delays or even obstructs implementing Community law (directives). National courts in the Member States might be hesitant or reluctant to set aside laws they deem important despite the fact that they encroach upon Community legislation. A potential problem, therefore, is not only of obstruction but, to a certain extent, also of "ignorance" to apply laws (Community law) that the courts in the Member States are less acquainted with. In practice there has been and still is an ongoing struggle to secure a full and proper application of Community law.

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The ECJ cannot be considered as the "Supreme Court" of the EU. Although certain similarities with the U.S. judicial system are apparent, the European judicial system also features notable differences.

The U.S. court system is divided into two administratively separate systems − the federal (13 federal courts of appeals) and the state (95 federal district courts). As in most countries the judicial order has three levels: trial, appeal, and the Supreme Court. The judicial branch is headed by the US Supreme Court, the only court specifically created by the Constitution. The federal courts hear cases arising out of the Constitution, federal laws, and treaties. With minor exceptions, cases come to the Supreme Court on appeal from lower courts.

In comparison, the European judicial system comprises national courts and the ECJ. An official institution empowered to hear appeals against decisions of national courts and to C-26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, [1963] ECR 1.

strike down inconsistent laws does not exist in the EU. In this sense, no equivalent to a system of American federal courts with such a competency really exists in Europe. 4 Although the establishment of regional, devolved Community courts has been discussed they have not been introduced. Neither is there any right of direct appeal from national courts to the ECJ.

In other words, an individual who is concerned by an act of one of the institutions of the European Union can challenge that act in a lower court, called the Court of First Instance (CFI). An appeal on points of law lies against the decisions of the CFI to the ECJ.

Nevertheless, most of court application of Community law is in the hands of national courts in the Member States.

The ECJ is the Court of the European Union adjudicating in all matters over which it has a competency granted by the Treaties. As each Member State has its own sovereign and different legal and jurisprudence systems, EU Member States' supreme courts (potentially their equivalents) are the highest courts in their respective jurisdictions in all other matters.

Although the drafters of the Treaties did not establish a "European system of federal courts" they found important to establish a mechanism ensuring a uniform application of Community law throughout the Member States. Such a mechanism is necessary to secure the rule of law and promote equal treatment among the citizens of Europe. In addition, uniform interpretation of law reduces distortions of competition and promotes economic efficiency. The competence to secure control of the interpretation and judicial development of Community law is not left to the national courts in the Member States. Rather, the unifying jurisdiction is confined to the ECJ.

4. The preliminary reference procedure according to Article 234 of the EC Treaty The underpinnings of the preliminary reference procedure are laid down in Article 234 EC (formerly Article 177) according to which the ECJ provides, upon the request of national courts, rulings on the interpretation and validity of Community law.

It states the following:

“The Court of Justice shall have jurisdiction to give preliminary ruling concerning:

(a) the interpretation of this Treaty, This does not seem surprising since the Community is not a federation but rather a sui-generis supranational entity.

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