Link between National Legal Systems and the EUs Legal System - Essay Example

?The functions of Article 267 TFEU as a Link between National Legal Systems and the EU’s Legal System Article 267 of the Treaty on the Functioning ofthe European Union (TFEU) enables national courts to refer a preliminary question of Community law to the European Court of Justice (ECJ) prior to rendering a judgment.1 Thus, the preliminary reference procedure has been described as the “principle procedural link between” national courts and the ECJ within the “EU legal system”.2 Essentially, it has been argued that the preliminary reference procedure facilitates European integration of legal systems because it provides national courts with a premise by which EU law is enforced rather than national law.3 Article 267 has two primary purposes. First it is intended to retain the independence of national courts and secondly, it is intended to ensure consistency in the interpretation and application of EU law throughout the Community.4 Indeed it was stated in Hoffman La Roche v Centrafarm that the preliminary reference procedure seeks to prevent “a body of national case law no in accord with the rules of Union law from coming into existence in any Member State.” 5 The end goals of integration of the legal system and consistency in interpretation and application of community law are however problematic because, national courts are not bound to refer a question of EU law to the ECJ. Article 267 of TFEU provides that when there is a question concerning the interpretation and application of EU law: When such a question is raised before any court or tribunal of a Member State, that court may, if it considers that a decision on the question is necessary to enable it to give judgment, require the Court of Justice to give a ruling thereon. 6 It therefore follows that the word “may” as it appears in Article 267 of the TFEU does not impose upon national courts a compulsory duty to refer a question of EU law to the ECJ for determination.7 The obligation to refer a preliminary question of EU law to the ECJ is only mandatory when the matter is before the court of final appeal and no further national remedies are available to the litigants.8 With lower national courts relieved of the compulsory obligation to refer a question of EU law to the ECJ when the interpretation and application of EU law is in doubt can be counterproductive to the goal of achieving consistency in the interpretation and application of EU law when a national court comes to the decision that not to refer a question to the ECJ for interpretation. Nyikos explains how the discretion to submit a preliminary reference to the EU on a point of EU law can compromise integration of national legal systems with the EU’s legal system and consistency in the interpretation and application of EU laws. According to Nyikos, the decision to refer a preliminary question of EU law depends on a number of variables that are difficult to predict. To begin with, the decision to submit a preliminary question of EU law largely depends on the national courts’ “acceptance” of intervention by the ECJ.9 A court’s decision to refer a preliminary question of EU law also depends on the “national judicial procedure”, the “complexity of the issue” and “individual court experience.”10 The ECJ however, has established a significant safeguard against the risk of inconsistency in the application and interpretation of Community law in cases where the national court is of the opinion that a particular EU law is not valid. In such a case, a referral is mandatory regardless of whether the court seized of the matter is a court of first or last instance. This is because it would be entirely inconsistent with the supremacy of EU law and the goals of consistency among EU states for a national court to render an EU law invalid and another state to uphold the same EU law.11 Ideally, perfect and seamless integration of national legal systems with the EU legal system and consistency of EU law within and among the Member States should be accomplished by Article 267 of TFEU. The idyllic application of Article 267 should mean that all persons appearing before national courts for remedies under EU law should be in a position to have tough and uncertain EU law referred to the ECJ for clarification. However, this will only occur with certainty when a litigant’s case is before a court where there are no further judicial remedies at the national level. The compulsory duty to submit a question of EU law to the ECJ when the court seized of the matter is the court of final instance can be waived. The waiver occurs when the doctrine of acte eclair or the doctrine of acte clair can be invoked.12 The doctrines are designed to promote the independence of the national courts and at the same time facilitate integration of the national legal systems with the legal system of the EU.13 The doctrine of acte clair simply states that if: A matter is so obvious in its meaning to the domestic court, then no reference need be made.14 There is a possibility however, where the meaning may appear to be obvious to the national court when it is not. However, once the court makes the determination, it may very well mean that the litigant will have no further recourse because the court rendering the decision is the court of final appeal. Nevertheless, Lord Denning set forth guidelines informing British courts when the doctrine of acte clair commands that the national court not refer a matter to the ECJ for a preliminary ruling on a question of EU law. The referral should be refused where the question has been previously determined by the ECJ and where the issue is sufficiently unambiguous.15 However, Lord Denning goes farther to provide two caveats that can lead to inconsistent outcomes in terms of the interpretation and application of EU law. According to Lord Denning, even where the doctrine of acte clair applies, the courts in deciding whether or not to refer a question of EU law to the ECJ for a preliminary ruling must take account of all the circumstances of the case, including the time involved, inundating the ECJ with cases, the complexity and significance of the case, the costs of referral and the parties’ wishes. The second caveat is that the British courts have the discretion to determine whether or not a referral should be made to the ECJ.16 Unfortunately, Lord Denning’s caveats serve as a reminder that there will be cases where there are judicial remedies in terms of further appeals where a referral can be made under Article 267 of TFEU, but may not be made at all. The reality is, national courts may be reluctant to stop the proceedings solely for the purpose of referring a matter to the ECJ or will decide that the claim is not large enough to warrant a referral.17 Lord Denning’s guidelines demonstrate that this is always a possible outcome. Even so, the ECJ has also provided its own guidelines as to when the doctrine of acte clair will justify a refusal to refer a question of EU law to the ECJ. A national court may deny the referral where a vastly similar issue has already been determined by the ECJ or the proper interpretation and application of Community law leaves no doubt as to how the question should be approached. However, in safeguarding against the risk of inconsistency, the court must also be sure that there is no doubt as to how all member states will perceive the interpretation of the question of EU law.18 The ECJ therefore appears to be narrowing the opportunities for inconsistent interpretations. Courts must therefore conduct onerous investigations of the case law of other member states to assure themselves that the national courts of member states will share the interpretative views with the court seized of the matter. It is difficult to imagine how this exercise can be conducted effectively since in most cases the question requiring interpretation may not have necessarily arisen before and if a vastly similar question was determined by member states, it may not have been determined consistently. This may explain why the ECJ also added that the decision to refer a question of EU law is ultimately a matter for the court seized of the matter.19 In the final analysis, the EU in its attempt to widen its influence and to extend the long arm of EU law throughout the Community20 may have national courts with too much independence to accomplish these goals. It would appear that since national courts alone may decide whether or not to refer a question of EU law for a preliminary determination by the ECJ, the EU may have left open the possibility that national courts may ultimately decide to resolve the matter themselves. By permitting this much liberty, there is always a risk, particularly among the appellate courts that inconsistent decisions may follow. It is therefore doubtful that Article 267 of TFEU is fit for purpose. Bibliography Textbooks Barnett, Hilaire and Jago, Robert. Constitutional & Administrative Law. (Oxon, UK: Routledge, 2011). Chalmers, Damian; Davies, Geth and Monti, Giorgio. European Union Law: Cases and Materials. (Oxford, UK: Oxford University Press, 2010). Fairhurst, J. Law of the European Union. (8th Edition, Harlow, UK: Pearson-Longman, 2010). Articles/Journals Blutman, Laszlo. ‘The Cartesio Judgment: Empowering Lower Courts by the European Court of Justice.’ (2010) III(2) Pravo I Politika, 95-106. Carrubba, Clifford, J. and Murrah, Lacey. ‘Legal Integration and Use of the Preliminary Ruling Process in the European Union.’ (Spring 2005) 59(2) International Organization, 399-418. Golub, Jonathan.‘The Politics of Judicial Discretion: Rethinking the Interaction Between National Courts and the European Court of Justice.’ (1996) 19(2) West European Politics, 360-385. Nyikos, Stacy, A. ‘Strategic Interaction Among Courts within the Preliminary Reference Process – Stage 1: National Court Preemptive Opinions.’ (June 2006) 45(4) European Journal of Political Research, 527-550. Virzo, Roberto. ‘The Preliminary Ruling Procedures at International Regional Courts and Tribunals.’ (2011) 10(2) The Law and Practice of International Courts and Tribunals, 285-313. Weiler, Joseph H.H.‘A Quiet Revolution. The European Court of Justice and its Interlocutors.’ (1994) 4 Comparative Political Studies, 510-534. Cases Bulmer v Bollinger [1974] 2 All ER 1226. Case 314/85 Firma Fotofrost v Hauptzollant Lubeck-Ost [1987] ECR 4199. Case No. 102/77 Hoffman La Roche v Centrafarm [1978] ECR 1139. Case C-99/00 Lyckeskog [2002] ECR I -4839. Case 283/81 CILFIT v Ministry of Health [1982] ECR 341. Statutes Treaty of the Functioning of the European Union (as Amended by the Treaty of Lisbon 2007). Read More