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Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Thursday, April 16, 2009

ECJ and the national courts and the preliminary reference procedure under Art 234

The relationship between the ECJ and the national courts as it was originally envisaged, as “bilateral and horizontal” but is increasingly becoming more “multilateral and vertical.” - Justin Santiago

The relationship between national courts and the ECJ was originally set out under Art 234 which allowed a preliminary reference by a national courts to the ECJ for an interpretation of a point of EC law and it was up to the national court to apply the interpretation to the facts of the particular case and make a decision. Before an application for an interim measure under Article 234 can be made but it must be established :-

1. There is a matter of urgency
2. There are factual and legal grounds to raise a prima facie justification
for the interim measure

Purpose of Art 234

1. To ensure the unity of interpretation
2. To ensure that community law is uniformly applied
3. To complement other actions against member states and community institutions – Art 230, member state liability, direct, indirect effect
4. To prevent a body of national not in accord with the rules of community law from coming into existence
5. What is most importance is the cooperation of the national courts and the willingness to make references

The relationship was horizontal in the sense that the ECJ and the national courts were separate but equal. It was for the national court to decide whether to refer a matter to the ECJ which the ECJ would then interpret. It was bilateral in the sense that the interpretation would be delivered to the particular national court that made the request.

However, the ECJ has become increasingly influential in the hierarchy of courts and there is a move to go beyond interpretation and to decide on actual cases and for national courts to follow precedents set by the ECJ.

The relationship has become more vertical and multilateral through the doctrine of direct effect where the body of law provided by the EC treaties and even extended to directives can have effect without the need for national legislation and the rulings of the ECJ are increasingly having either a de jure or de facto impact on all other national courts.

The ECJ has held that it was not always mandatory for a court of last appeal to refer : Da Costa en Schaake NV v Nederlandse Belastingadiministratie. Guidance on referal was provided in CILFIT, a national court need not refer if :-

- the interpretation of EC law is so clear that only one outcome is reasonable – similar to the concept of acte claire in French administrative law, by which the ECJ was no doubt influenced.
- a case with similar facts has already been decided by the ECJ
- the interpetation of EC law would have no relevance to the outcome of the case.

CILFIT is interesting in that it suggests that a national court need not refer if the issue of EC law has similar facts to those of issue on which the ECJ has previously ruled. It does not require that the facts be identical. This suggests that the ECJ expects its decisions to have precedential value which is binding on national courts. If this view is correct, then it represents a significant departure from the relationship between the ECJ and national courts as it was originally envisaged, as “bilateral and horizontal” but is increasingly becoming more “multilateral and vertical”. If the decisions of the ECJ have the status of binding precedent, then this makes the ECJ more like an appellate court that an advisory body, for better or worse.

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