Purpose of Article 234 - Assignment Example

Purpose of Article 234 Article 234 effectively allows individuals to challenge actions by Member s or any of the European Union s through the European Court of Justice but obtain an effective remedy from the national court. It has proven its worth over the years, particularly in ensuring that national courts and tribunals worked with the European Court of Justice to harmonise the implementation of the various legislation coming out of Brussels: Steiner & Woods (2003, p. 574) Article 234 European Community provides that: (1)The Court of Justice shall have jurisdiction to give preliminary rulings concerning: a) the interpretation of this Treaty b) the validity and interpretation of acts of the institutions of the Community c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. (2) Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. (3) Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice. We can see that the European Court of Justice can only deliver preliminary rulings in certain circumstances and from a limited subset of organisations - namely courts and tribunals. Certain criteria must be fulfilled before a national court or tribunal can invoke Art 243. Closer examination of the provisions of the Art 234 leads us to ask the following questions: 1. Does Maria's case require interpretation of the European Union Decision 2. Is the Italian Medical Council a 'court or tribunal' for the purposes of Art 234(2) 3. Is a preliminary ruling necessary for the Italian Medical Council to conclude Maria's case 4. If so, should the Italian Medical Council proceed under Art 234(2) or Art 234(3) Is there a question of Community law to be interpreted Article 249 makes it clear that a European Union Decision is 'binding in its entirety upon those to which it is addressed'. In this case the European Union Decision requires all member states to take necessary measures to ensure that pension schemes are equalised for male and female workers in order to eliminate any forms of discrimination based on gender. The Italian government has lead responsibility to make sure it is implemented. What is not clear on the facts before us is whether there is a question of Community law to be interpreted. The European Court of Justice will not hear any other matter. This is the only ground on which a national court or tribunal can request a preliminary ruling. If we refer back to Art 234(1) applicants must establish that they require a ruling which pertains to either the interpretation of the Treaty itself and or the interpretation and validity of an act by a European Community institution. With regard to Council statues, the statute itself must grant permission for preliminary hearings on the statue: Art 234(1) If there is no question of Community law to be interpreted then Maria will be denied her request for the Italian Medical Council to seek a preliminary ruling. The European Court of Justice has powers to neither interpret domestic law nor pass judgement on the compatibility of domestic law with European Community law: Van Gend en Loos (case 26/62). In Costa v ENEL (case 6/64) the European Court of Justice said: 'a decision should be given by the Court not upon the validity of an Italian law in relation to the Treaty, but only upon the interpretation of the above-mentioned [Treaty] Articles in the context of the points of law stated by the Giudice Conciliatore' The European Court of Justice also has no jurisdiction to rule on the application of Community law by national courts. Further it cannot invite national courts to refer matters to it: De Geus en Uitdenbogerd v Robert Bosch GmbH (case 13/61). The European Court of Justice unequivocally stated in Foglia v Novello (No 1) (case 104/79) and in Foglia v Novello (No 2) (case 244/80) that it will not answer purely academic or theoretical questions, or provide advisory opinions on general or hypothetical questions. Indeed the European Court of Justice has gone further in restricting the type of reference it will allow. In Monin Automobiles - Maison du Deux-Roues (case c-428/93) the European Court of Justice refused to answer any questions which were not 'objectively required' by the national court as 'necessary to enable that court to give judgment'. There defendant had attempted to argue that because there were outstanding matters of European Community law outstanding, it should not be placed into liquidation until they were resolved. The European Court of Justice replied that although there were indeed matters of Community law involved in the case, the answers the national court required were not relevant to the case before it. The national court would still be able to reach judgment without a preliminary ruling on the outstanding maters of Community law. Is the Italian Medical Council a Tribunal within the meaning of Art 234 Under Community law the word 'tribunal' has a very broad meaning. Provided the body applying for a preliminary ruling can show that it has its origin in Statute, is permanent, has a compulsory jurisdiction, applies the rule of law and is independent, then the European Court of Justice is more than likely to agree that it is a court/tribunal: Predo di Salo v Persons Unknown (case 14/86). In a case similar to the one under examination - Broekmeulen (case 246/80) - the European Court of Justice held: in the practical absence of an effective means of redress before the ordinary courts, in a matter concerning the application of Community law, the appeal committee, which performs its duties with the approval of the public authorities and operates with their assistance, and whose decisions are accepted following contentious proceedings and are in fact recognised as final, must be deemed to be a court of a Member State for the purpose of Article 177 [now 234]. The Italian Medical Council appears to meet the criteria outlined in similar cases which have been successful. We should also note that the Italian Medical Council has a particular remit to handle this type of dispute, its decisions have force in law, and that it is the last recourse for disgruntled medical professionals in Italy. Is a preliminary ruling necessary for the Italian Medical Council to conclude Maria's case For some time it was thought that the 'permissive' jurisdiction given in Art 234(2) did not apply to final courts/tribunals. Under the 'permissive' jurisdiction any court/tribunal regardless of where it sits in the hierarchy can request a preliminary ruling without referral to a higher court: R v Plymouth Justices ex Parte Rogers (1982). It was thought that Art 234(3) meant that final courts/tribunals had a mandatory obligation to bring any request for a preliminary ruling before the European Court of Justice. However in CILFIT Srl (case 283/81) the European Court of Justice stated that: the courts or tribunals referred to in Article [234(3)] have the same discretion as any other national court or tribunal to ascertain whether a decision on a question of Community law is necessary to enable them to give judgment. Regardless of the status of the court, any questions addressed to the European Court of Justice under Art 234 must be relevant. To ease backlog and perhaps also to provide certainty within the law previous decisions should not be referred again unless absolutely necessary for further guidance on a matter of Community law. The doctrine of acte clair also applies - if the answer is clear then there is no need for a referral for a preliminary ruling. Jurists such as Lord Denning took the view that the only matters which should be referred were those which were of particular difficulty and of Community significance. No matter should be referred unless both parties agreed, since the European Court of Justice has an enormous back log of cases, and it is added expense and delay. Courts should also take into account the urgency of the matter before referring the matter to the European Court of Justice. The more urgent the remedy required, then the less appropriate it would be to refer the matter for a preliminary ruling to the European Court of Justice: Bulmer v Bollinger (1974) After determining whether or not there is a matter of interpretation pertaining to Community law, the Italian Medical Council would then have to decide whether it was necessary to refer the case for a preliminary hearing. It should only do this if a) it could not reach a conclusion without a preliminary ruling and b) it chose not to keep the matter to itself. In the event that it was appropriate to do so, as a final tribunal, the Italian Medical Council would then proceed under Art 234(3). Consequences of a Preliminary Ruling All member states have to be aware of decisions made by the European Court of Justice, but only the individual case on which the judgment was delivered is bound by the decision. It remains possible for the same matter to be brought before the European Court of Justice again provided there is a 'real interest' for the member state to do: Da Costa en Schaake (cases 28-30/62). Preliminary rulings do not usually provide remedies - they are simply clarifications of Community law as they stand. Once the judgment has been handed down the matter returns to the national court for final determination. Conclusion On the facts before us Maria is not likely to be successful in persuading the Italian Medical Council to apply for a preliminary ruling. There appears to be no ground for doing so under Art 234(1). It therefore follows that the Italian Medical Council can turn down her request without considering the matter further. In the event there is a ground for doing so under Art 234(1), then the Italian Medical Council can still turn down her request on the ground that it does not require a preliminary ruling in order to determine whether her employer has a case to answer under national discrimination law as impacted by the European Union decision. Regardless of whether it finally requests a preliminary ruling or not, the European Court of Justice will not hear the matter unless it complies with the guidelines outlined in CILFIT Srl (case 283/81). The Italian Medical Council must first determine whether discrimination has taken place before it need turn to applying current law. This will be a matter of fact, not of law. It should therefore be apparent that although the preliminary rulings procedure has its merits, and has been described as successful, it also has it weaknesses. Steiner & Woods (2003. p. 575) point out some of these weaknesses. For example, only the national judge can determine when to refer a matter for a preliminary ruling; no individual can compel referral - only attempt to persuade the court or tribunal that the matter is suitable for referral. It is also important that the national court or tribunal asks the right questions from the outset and provide sufficient factual detail for the European Court of Justice to correctly apply European Community law. Words: 1908 Bibliography Article 234 European Community Broekmeulen (case 246/80) Bulmer v Bollinger (1974) CILFIT Srl (case 283/81) Costa v ENEL (case 6/64) Da Costa en Schaake (cases 28-30/62). De Geus en Uitdenbogerd v Robert Bosch GmbH (case 13/61). Foglia v Novello (No 1) (case 104/79) Foglia v Novello (No 2) (case 244/80) Monin Automobiles - Maison du Deux-Roues (case c-428/93) Predo di Salo v Persons Unknown (case 14/86). R v Plymouth Justices ex Parte Rogers (1982). Steiner & Woods, 2003. Textbook on European Community Law. 8th Edition. OUP: New York Van Gend en Loos (case 26/62). Read More