Sir Thomas Binghams Interpretation of Article 267 TFEU - Essay Example

Sir Thomas Bingham’s Interpretation of Article 267 TFEU in R v International Stock Exchange of the UK and the Republic of Ireland Ltd. Ex parte ElseSir Thomas Bingham’s interpretation of Article 267 of the Treaty on the Functioning of the European Union (TFEU) appears to overly restrict the national courts’ discretionary powers. As such Sir Bingham’s interpretation of Article 267 may not be entirely compatible with Article 267. According to Sir Bingham, under Article 267, all national courts except for a final appellate court are required to refer questions of Community Law to the European Court of Justice (ECJ) unless they are completely sure of the interpretation and application of Community law. Essentially, if the national court has “any real doubts…it should ordinarily refer”.1 Sir Bingham’s interpretation is far too close to the duty imposed on the courts of final appeal. As determined by the ECJ in Srl CILFIT and Lanificio di Garvardo SpA v Ministry under Article 234 (now Article 267), a court of final appeal is required to refer to the ECJ unless the issue of Community law arising at the trial is irrelevant or had already been determined by the ECJ or the resolution is obvious.2 In other words, the court of final appeal is required to make a reference to the ECJ where there is a real doubt pertaining to an issue of Community law. Under Article 267 of TFEU when a question relative to the an issue of interpreting and applying Community law arises a national 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.3 The use of the word “may” in Article 267 is hardly coincidental. It could only mean that under Article 267, national courts do not have a mandatory obligation to refer questions of Community law to the ECJ.4 The duty to refer preliminary questions on the interpretation and application of Community law is only mandatory when a court of final appeal is hearing the relevant case and remedies at the national level have been exhausted.5 However, when Sir Bingham’s ruling is considered together with the wider objectives of Article 267, his interpretation of Article 267 is entirely compatible with Article 267. The provision of preliminary references under Article 267 of TFEU is often characterized as the main “procedural” nexus for linking national courts with the ECJ within the Community’s legal framework.6 It makes the procedural link between national courts and the ECJ by providing a method by which member states integrate their legal systems in that national courts can ensure that Community law are enforced throughout the Community.7 There are essentially two primary goals enshrined in Article 267 of TFEU. Firstly, the preliminary reference procedure within the ambit of Article 267 is aimed at preserving national courts’ independence. Secondly, it is aimed at facilitating consistency, certainty and predictability of Community law.8 In referring to the preliminary reference procedures, the court observed in Hoffman La Roche v Centrafarm that the preliminary reference procedure is intended to act as a safeguard against the application and interpretation of national laws that are not “in accord with the rules of the Union law”, thus preventing this kind of law coming into existence in any Member State.” 9 Arguably, if the primary intention of Article 267 is to facilitate the integration of legal systems within the Community so that Community law is consistently interpreted and applied, Sir Bingham’s interpretation is more compatible with the intent of Article 267. If national courts do not have a mandatory obligation to submit questions of preliminary issues of Community law to the ECJ when there are doubts about the interpretation and application of Community law, there is a risk of inconsistency and integration is less likely. Moreover, allowing national courts too wide a discretion with respect to the decision to refer a preliminary issue of Community law to the ECJ is counterproductive to the goals of integration of Community law and the consistency of national laws as envisioned by Article 267. The discretion to submit a preliminary issue of Community law is complicated because the decision is influenced by a number of factors that are difficult to measure and anticipate. Firstly, a national court’s decision to refer a question of Community law to the ECJ could be influenced by that court’s willingness to accept the ECJ’s input.10 A national court’s exercise of the discretion may also be influenced by issues such as national court procedures, whether or not the question of law is complicated and the national court’s experience with Community law.11 In other words, some courts may refer questions of EU law to the ECJ, while some courts may not with the result that Community law can be either applied inconsistently or not applied at all. Thus the intention of integration of Community law and consistency of national laws within the Community are less likely to occur unless Sir Bingham’s restrictive approach to the exercise of the discretion is accepted as his approach is compatible with the purpose and intent of Article 267, although inconsistent with a strict interpretation of Article 267 itself. The ECJ has developed guidelines calculated to decrease the risk of inconsistency of the application and interpretation of Community law in instances where the national court is considering the validity of Community law. In such circumstances, a national court, including a court of final appeal, is required to refer the issue to the ECJ without exception. This mandatory referral is necessary as it recognizes and accepts the supremacy of Community law. Moreover, it would be counterproductive to the goals of consistency and integration if national courts could declare Community law void and another court could declare the same issue of Community law valid.12 The underlying goal of Article 267 is to ensure that Community citizens who litigate before national courts seeking remedies under Community law should be confident that any uncertainties relative to the interpretation and application of Community laws would be referred to the ECJ for resolution. This is obviously, what Sir Bingham meant in his interpretation of Article 267. However, upon a strict construction of Article 267, this assurance is only possible when a question of Community law arises before a court of final appeal. The certainty available at the court of final appeal is also subject to restrictions. The doctrine of acte clair can be invoked to permit an exception to the mandatory obligation to refer a preliminary question of community law to the ECJ for determination.13 Acte clair is calculated to ensure that national courts retain some measure of independence and simultaneously seeks to ensure that national legal systems are integrated with the legal system of the Community.14 In its simplest form, acte clair provides that where an issue is patently “obvious in its meaning” from the perspective of the national court, it is not necessary for that national court to make a reference to the ECJ.15 It however may be of little actual relevance to Article 267 and its position relative to the mandatory obligation of the court of final appeal to refer issues of community law to the ECJ where there is doubt as to its interpretation and its meaning. If the interpretation and application of an issue of Community law is obvious, the court of final appeal should not have any doubts as to the interpretation and application of that issue of Community law. On the other hand, assuming it is possible for a court of final appeal to have doubts about the interpretation and application of national courts where the resolution is obvious; there is a possibility that the court of final appeal can be mistaken as to the obvious solution to the issue of Community law. If the court of national appeal is mistaken, acte clair allows the court nonetheless to determine the matter for itself and if the decision is erroneous, it is too late for the Community national since the decision will be made by the court of final appeal. In Bulmer v Bollinger Lord Denning established guidance for UK courts directing when the acte clair should be invoked, thus guide judicial discretion against referring a question of Community law to the ECJ for determination. According to Lord Denning, a referral to the ECJ should not be made when the question of Community law has already been decided by the ECJ and a referral should not be made where the issue of Community law is clear and undisputed.16 Lord Denning goes on however, to state that even where the issue of Community law has been previously determined or the resolution is entirely clear, courts should not automatically refuse a referral on a preliminary issue of Community law. In other words, even where acte clair can be invoked, UK courts must consider whether or not to refer a preliminary question of Community law to the ECJ must take into consideration all of the facts and relevant circumstances of the case. The range of facts and circumstances would include time it would take to have the issue resolved by the ECJ, overloading the ECJ’s docket, the importance of the case, the complexity of the case, the cost involved in referring the case to the ECJ, and the litigant’s preferences relative to referral. Even so, according to Lord Denning, it is within the court’s ultimate discretion whether or not to refer a question of Community law to the ECJ for resolution.17 In anything, Lord Denning’s guidelines do not safeguard against the possibility that there would be cases in the UK, where the matter is not up for a final appeal, where referrals can be made under Article 267 of TFEU, but may nevertheless not be made because, the decision is ultimately that of the trial judge. Thus, Sir Bingham’s interpretation of Article 267 is far more compatible with Article 267’s goal of seeking to provide consistency relative to the application and interpretation of Community law and the integration of national legal systems with the Community legal system. As Chalmers, Davies and Monit explain, there would always be times where national courts would be hesitant to stay proceedings in order to refer a matter to the ECJ for a preliminary decision. National courts may be reluctant to refer a preliminary issue on the grounds that the case itself is not significant or large enough to justify an interruption in the proceedings.18 Arguably, Sir Bingham’s interpretation is designed to avoid these kinds of outcomes, which is exactly the kind of outcomes that Article 267 attempts to avoid. Thus, Sir Bingham’s interpretation is at the very least consistent with the intent of Article 267. The ECJ has also provided guidance for national courts relative to invoking acte clair. For instance in CILFIT v Ministry of Health the ECJ ruled that a national court may deny a referral to the ECJ when a very similar issue has already been determined by the ECJ. A national court may refuse to submit a referral where there is no doubt relative to the interpretation and application of an issue of Community law. However, in order to ensure consistency in the interpretation and application of Community law, a court may only refuse a referral in cases where the perceived absence of doubt is supported by the fact that there is no doubt as to how other national courts would interpret the issue of Community law.19 The ECJ also added that the final decision as to referral of an issue of Community law is in the discretion of the national court seized of the matter.20 Even so, the restrictions placed on the exercise of that discretion is framed so as to accord with Sir Bingham’s interpretation of Article 267. Even so, the ECJ’s concession that it is within the national court’s discretion whether or not to refer a matter, leaves open the possibility that national courts may misinterpret or misapply Community law to the detriment of litigants and the consistency and integration goals of the Article 267. Thus, while in principle, Sir Bingham’s interpretation is compatible with the goals of Article 267 relative to consistency and integration, it is not consistent with Article 267’s goal of national courts retaining independence. By allowing judicial discretion at the national level to prevail, there is always a danger that Community law will be interpreted and applied inconsistently across the Community. However, allowing judicial discretion to prevail, national court independence will be achieved. 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). Craig, Paul and De Burca, Grainne. The Evolution of EU Law. (Oxford, UK: Oxford University Press, 2011). 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. Golub, Johathan. ‘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. Cases Bulmer v Bollinger [1974] 2 All ER 1226. Case 283/81 Srl CILFIT and Lanificio di Garvardo SpA v Ministry [1982] ECR 3415. Case C-99/00 Lyckeskog [2002] ECR I -4839. Case No. 102/77 Hoffman La Roche v Centrafarm [1978] ECR 1139. Case 314/85 Firma Fotofrost v Hauptzollant Lubeck-Ost [1987] ECR 4199. R v International Stock Exchange of the UK and the Republic of Ireland Ltd. Ex parte Else [1993] 1 All ER 420. Statutes Treaty of the Functioning of the European Union (as Amended by the Treaty of Lisbon 2007) Art. 267. Read More