A Court or Tribunal against Whose Decisions There Is No Judicial Remedy - Essay Example

?A court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of community law is raised before it, to comply with its obligation to bring the matter before the court of justice...” SRL CILFIT 283/81 Discuss with reference to case law. Article 258 (ex 226) of the Treaty on the Functioning of the European Union1 provides for enforcement of infringement procedures, which can force Member States to comply effectively with their obligations under Community law2. In cases of non-compliance the Commission can further institute proceedings against Member States before the European Court of Justice (ECJ). Moreover, the Commission can further rely on the provisions of Article 245 (ex 211) EEC as “guardians of the Treaty “and has to ensure proper application of Community law, in line with Article 245 of the TFEU3. However, the White Paper on European Governance published by the Commission in 2001 further highlights that the primary responsibility for the application of Community law lies with national administrations and courts in the Member States4. Therefore, the primary objective of enforcement of actions against Member States is to monitor compliance and respond to non-compliance. As such, the Commission aims to encourage voluntary compliance of the Member State5. Moreover, the underlying sentiment of the Commission’s strategic objectives for 2005-2009 is that vigorous pursuit of infringement actions under Article 258 are “considered critical to the credibility of European Legislation and the effectiveness of policies”6 Moreover, according to Article 258, Member States that fail to fulfil an obligation under the Treaty can be subject to the infringement procedure. The Article 258 procedure is provided to allow the Commission to pursue its task of policing the application and compliance with the Treaties and secondary Community law obligations7. In turn this has raised issues as to the extent of national court obligations to refer questions of Community law to the ECJ. This paper critically evaluates the parameters of the legal obligations of national judicial authorities to refer issues of community law to the ECJ with specific reference to the relevant treaty procedures and case law. Firstly, it is submitted that often the issue of reference is linked with infringement issues8 and in order for the infringement procedure to commence a breach of obligation by a Member State must be suspected by or brought to the attention of the Commission. A breach or failure to act is most often observed in the forms of a Member State failing to implement Community legislation9. Moreover, the Commission has taken several measures to adequately remedy problems encountered in the transposition, implementation and enforcement of directives in particular for example10. These include regular publication of calendar for transposition and annual reports to monitor the application of community law. Borissova further comments that: “By launching enforcement action against a Member State, the Commission is not asking the ECJ to recognise a Member’s State’s intention to breach the law but to deliver a declaratory judgment not the latter’s failure to comply with its Community obligations11”. However, Article 258 (ex 226) requires administrative procedural steps to be taken before court proceedings can be instituted. Article 258 further provides that “if the Commission considers that a Member State has failed to fulfil an obligation under this treaty, it shall deliver a reasoned opinion on the matter”. Having informed the Member State of its breach, the Commission gives the state the opportunity to answer the allegation or take corrective action prior to formal proceedings under Article 258, which in turn leaves significant discretion to member states and national courts to address issues of community law12. If the matter is not resolved informally in the first phase, then member state will be formally notified of the alleged infringement by means of a letter of formal notice sent by the Commission13. The member state will then be given two months to reply except in cases of emergency, the Commission normally decides within a year either to close the case or proceed14. Furthermore, if following negotiations the matter is undecided the Commission will set out a reasoned opinion, which clearly sets out the grounds regarding the alleged infringement and marks the beginning of the time period within which the Member State must comply with the recommendation of the Commission in order to avoid judicial proceedings15. The reasoned opinion is delivered to the Member State and registered by the ECJ. Whilst the initial judgment of the ECJ is declaratory and carries no specific sanctions per se, Member States are nevertheless placed under a further obligation under Article 262 (ex 228) to comply with the judgment by taking necessary measures. If they fail to comply with this, then action will be taken against them by the Commission under Article 258 for a breach of Article 262. For example, in the case of Commission v Italy16 the Commission determined that because Italy had failed to comply with the Court’s judgment in the first Art Treasures case, judgement should be given in favour of breach of Article 262. Notwithstanding the fact that prior to judgment Italy had complied with the original decision, Italy had still failed to comply with Article 228. Moreover, the decision in R v Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd17 determined that a breach of community law will be sufficiently serious to found liability where a state has violated an established principle of Community in direct contravention of treaty obligation18. However, often when dealing with disputes regarding member state infringement, the issue has arisen with regard to the rights of the state to challenge unlawful EU actions19. The main method of direct challenge is Article 263 (ex230), which reviews the legality of acts adopted, Article 265 and alternatively Article 266 (ex Article 234) is an indirect method of challenging a treaty whereby an individual can go to a national court which there is no judicial redress to and the court upon its own will can decide to refer to the Court of First Instance or the ECJ for a preliminary ruling on the question20. The main stumbling block with Article 263 is the time limit, however there is no such time limit under Article 266, which allows the individual broader scope to bring an action21. Moreover, under Articles 263 and 265 (ex article 232) the initial difficulty for applicants will be the issue of locus standi requirements of the Treaty. Individuals can only challenge acts which could and should have been addressed to them22. In the case of Lord Bethell v Commission23 and Holtz v Council24 it was asserted that Regulations are normative acts and cannot be addressed to individuals25. As such, applicants will only be able to plead the matter under Article 263 and 265 if it can be established that the Regulations concerned them as an individual, however it has been established that Regulations do not directly and individually concern individuals26. On the other hand, Article 266(1) (b) enables Community acts to be challenged via the national courts. However, in order to make an Article 266 reference directly as an individual as the ECJ can only hear references made by a recognised court or tribunal of a Member States under Article 266. The inherent problem in this is the discretion afforded to national courts. For example, the French Conseil d’Etat refused to make a reference in the case of Minister of the Interior v Cohn-Bendit27 notwithstanding the fact “that the case clearly warranted such a reference”28. Moreover, in the case of Pigs Marketing Board v Redmond29the ECJ asserted the need to defer to national court discretion as they were in “the best position to appreciate with full knowledge of the matter before it, the relevance of the question of law raised by the dispute and the necessity for a preliminary ruling so as to enable it to give a judgment”30. The issue regarding the duties of national courts to refer interpretation of Community law issues are addressed by Article 266(3). In terms of the judicial application of Article 266, in Da Costa31, Costa v ENEL32 and CILFIT33, it was held that where there was a materially identical question to be resolved before the national courts, the national court of last instance did not have an obligation to refer the matter under Article 266. The leading case of CILFIT 34 clarified the conditions in which national courts are not obliged to make a reference under Article 234; asserting the acte clair principle thus: “the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it”35. The ECJ laid down definitive guidelines in CIFIT regarding national court obligations and resulted in significant discretion to national courts under Article 234. Moreover, Weatherill highlights that the French concept of acte clair is often referred to as being the relevant principle governing the national court obligations to refer under Article 26636. Under this principle, if the principle or application of Community law is unequivocal, then the matter is so clear that the national court has no obligation to refer. This was confirmed in the Official Community guidelines of 200537 where it was stipulated that in order for the obligation to refer to be relieved, the national courts must establish that the outcome of the decision would be as obvious to other member states in order to lead to the same conclusion. With regard to rulings on validity, the Court of Justice have determined in CILFIT that issues of validity must be referred to the ECJ however national courts can apply previous ECJ decisions of validity of the same provision has already been dealt with and applied38. On this basis it would appear that lower courts would also have discretion to refer and are able to apply previous ECJ decisions based on the Da Costa principle39. Moreover, lower courts would appear to have discretion to refer or permit appeals when addressing validity issues. However, as highlighted in the case Foto-Frost40 lower courts cannot rule on validity. However, the 2005 guidelines and the decision in Zuckerfabrik41 determined that there could be an exception where the matter was urgent and required interim measures suspending the application of a Community measure whilst preliminary rulings were sought. Moreover, the Guidelines are not binding and require national courts to make any references with a clear statement of facts, reason for reference and any relevant principles of national law42. Accordingly, it would appear that notwithstanding the express obligation in CILFT, ultimately the national courts have significant discretion regarding the obligation to refer matters of Community law to the ECJ. BIBLIOGRAPHY Borissova, L “Enforcement actions under EU law. The new member states”, (2007) EIPA Working Paper No.2007/01. Available at www.eipa.eu accessed January 2011. Chambers, D., Davies, G., & G. Monti (2010). European Union Law: Cases and Materials, 2nd Edition. Cambridge: Cambridge University Press. Craig, P. & de Burca, G. (2007). EU Law: Text, Cases and Materials. 4thEdition. Oxford: Oxford University Press. Davies, K. (2009). Understanding European Union Law. 3rd Edition. London: Routledge Horspool, M. & Humphreys, M. (2010). European Union Law. 6th Edition. Oxford: Oxford University Press Kaczorowska, A. (2008). European Union Law. 1 Edition. London: Routledge-Cavendish Mancini, G. F. and Keeling, T. “From CILFIT to ERT: The Constitutional Challenge Facing the European Court” (1991) Yearbook of European Law 1. Steiner, J. & Woods, L. (2009). EU Law. 10th Edition. Oxford: Oxford University Press. Turner, C & Storey, T. (2008). Unlocking EU Law. London: Hodder Arnold Weatherill, S. (2010). Law of the European Union. 9th Edition. Oxford: Oxford University Press. Wyatt, D. & Dashwood, A. Dougan, M., Arnull, A., Ross, M & Spaventa, E. (2006). Wyatt and Dashwood: European Union Law. 5th Revised Edition. London: Sweet & Maxwell. Legislation and websites The Treaty on the Functioning of the European Union (2008) at www.consilium.europa.eu accessed January 2011. www.eur-lex.europa.eu www.opsi.gov.uk All accessed January 2011. Read More